[Senate Hearing 107-194]
[From the U.S. Government Publishing Office]
S. Hrg. 107-194
PRESIDENT CLINTON'S ELEVENTH HOUR PARDONS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 14, 2001
__________
Serial No. J-107-3
__________
Printed for the use of the Committee on the Judiciary
_______
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 11
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 15
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 12
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 10
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 14
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 18
Schumer, Hon. Charles E., a U.S. Senator from ther State of New
York........................................................... 17
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 15
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 7
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina, prepared statement................................... 103
WITNESSES
Adams, Roger, Pardon Attorney, Department of Justice, Washington,
DC............................................................. 20
Becker, Benton, Professor of Constitutional Law, University of
Miami, Pembroke Pines, FL...................................... 45
Gormley, Ken, Professor of Constitutional Law, Duquesne
University, Pittsburgh, Pennsylvania........................... 48
Holder, Eric H., Jr., Former Deputy Attorney General, Department
of Justice, Washington, DC..................................... 29
Quinn, Jack, Attorney, Quinn and Gillespie, Washington, DC....... 65
Schroeder, Christopher H., Professor of Law and Public Policy
Studies, Duke University, Durham, NC........................... 57
QUESTIONS AND ANSWERS
Responses of Sheryl L. Walter, Acting Assistant Attorney General,
Department of Justice, to questions from Senator Feinstein..... 88
Response of Ken Gormley to a question from Senator Leahy......... 88
SUBMISSIONS FOR THE RECORD
Hubbard, Joseph D., District Attorney, State of Alabama,
Anniston, AL, letter........................................... 97
Interpol, red notice for the arrest of Marc Rich................. 98
Love, Margaret Colgate, Attorney, Washington, DC, statement...... 92
Stanish, John R., Attorney, Hammond, IN, statement............... 99
PRESIDENT CLINTON'S ELEVENTH HOUR PARDONS
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WEDNESDAY, FEBRUARY 14, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, Kyl, DeWine, Sessions,
McConnell, Leahy, Kohl, Feinstein, Feingold, Schumer, and
Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. We will begin. Good morning. I would like
to welcome everyone to today's hearing on the pardons granted
by President Clinton just before he left office on January 20,
2001. I would like to thank all of the witnesses who have come
here today or who have submitted statements for the record.
The pardons and commutations granted by former President
Clinton have been the subject of much debate and public
commentary. I think virtually everyone who has examined them
has been left with some serious questions as to whether some of
them were appropriate. Moreover, I think virtually everyone
agrees that the pardons given to Marc Rich and Pincus Green
were particularly outrageous, because they were fugitives who
had never taken responsibility for their actions, or even
appeared in court to challenge them. In fact, the Justice
Department had Mr. Rich listed as an international fugitive
wanted by the FBI.
Moreover, these pardons allegedly were preceded by lavish
gifts, political contributions, and pledged donations to the
Clinton Presidential library.
As we have come to find out over recent days, Marc Rich and
Pincus Green were indicted in the largest tax evasion case in
U.S. history. The record is replete with their stonewall
tactics and refusals to produce documents responsive to
numerous grand jury subpoenas. Former prosecutors in the case
have even described an effort by Mr. Rich and Mr. Green to ship
subpoenaed documents out of the country in steamer trunks--a
plan which was thwarted by law enforcement, after a tip allowed
them to stop the airplane with the documents on it before it
took off.
We have also learned that Mr. Rich's ex-wife, Denise Rich,
has donated large sums of money to the Democratic Party,
reportedly pledged $450,000 to the Clinton Presidential
library, and gave expensive furniture to the President at the
end of his term. These gifts and donations raise obvious
questions and they deserve an answer.
Pardons to individuals such as these, and under these
circumstances, raise serious questions in the public's mind
about what does go on in the pardon process, how such decisions
are made, and who can be held accountable. Similar questions
arose in the summer of 1999 when numerous members of the FALN
and Los Macheteros were also granted clemency by President
Clinton. This committee examined the process that led to that
decision and discovered that, while proponents of the clemency
were granted meetings with very high-level government
officials, victims were shut out of the process. The concerns
of law enforcement were also apparently not heard or were
disregarded. For example, many violent acts for which the FALN
had claimed credit were never solved. A co-defendant in one
case, a man named Victor Gerena, was never brought to justice
and remained on the FBI's Ten Most Wanted list. Despite this,
none of the individuals granted clemency was asked to provide
information to law enforcement on the unsolved cases or the
whereabouts of Gerena.
As pointed out by a Washington Post editorial on Monday,
there are legitimate questions about some of the last-minute
pardons, including the Rich and Green pardons, that ``warrant a
full accounting.'' The Post suggests that President Clinton
should volunteer a full explanation. I agree. I am one of those
who believes that the President's pardon power under the
Constitution is absolute, and there is nothing we can do to
change what has happened in these particular cases. That being
said, I also believe that there is a need in the public
interest to have a full explanation of what has gone on so that
if there are any improprieties, they will never happen again.
There are many appropriate ways President Clinton could do
that, in a variety of settings, that would respect the office
he used to hold, as well as to help the public understand what
has happened.
Our focus at today's hearing will be process. Today we will
continue the earlier examination of the pardon process we began
during the FALN controversy and examine the role--or lack of
role--played by the Justice Department. It appears that as many
as 47 of President Clinton's final grants of clemency did not
go through the normal process. Many were not investigated or
vetted by the Justice Department to any significant degree, and
I think we have seen some of the potential problems that can
occur when that happens.
Today's hearing will identify for the American people what
process is in place and what is the normal role of the Justice
Department. We will then turn to a few examples of pardons that
did not go through that process and try to understand how they
came to be. Finally, we have some distinguished scholars to
discuss constitutional and other legal issues that could arise
from legislative efforts to revise the current system which
members may suggest in the future.
I have delegated authority to Senator Specter to conduct
these hearings, and I am very appreciative that he is willing
to do so. I cannot imagine anybody better on our side to do so
or anybody better on the Democrat side other than the ranking
minority member, Senator Leahy, both of whom have been
prosecutors in the past and both of whom are excellent lawyers.
So that is what we are going to do, and I want to thank all
of you again for your attendance today. I look forward to an
interesting and informative hearing. I am going to turn the
hearings over to Senator Specter and Senator Leahy. We will now
turn to Senator Leahy and proceed with the hearings.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. Like you, I will
have to leave for another event, but let me say this: I think
today's hearing can perform a very useful and constructive
service to the American people and to our institutions of
Government. Of course, it may not. It can illuminate valuable
lessons for the future, or it could turn into partisan
recriminations about the past. I would hope and expect that it
would do the former.
Now, from what I have read in the press about the pardon of
Marc Rich, it appears to me to be an occasion on which I
disagree with a President's use of his constitutional pardon
power. I have read that this pardon was supported by a number
of well-respected lawyers, counsels who have staffed Democrats
and counsels who have staffed Republicans. I understand that in
addition to Mr. Quinn, who has counseled Democrats, that it
also had the backing of Lewis Libby, who is currently serving
as the chief of staff to Vice President Cheney.
So, President Clinton's former counsel favored it, Vice
President Cheney's chief of staff favored it, and outgoing
Prime Minister Ehud Barak favored it. But, frankly, I think
they are all wrong. I do not happen to favor this pardon, but I
understand the right of a President to pardon.
I understand different people have different views on
different pardons. For example, on the Marc Rich pardon, some
have said that the prosecution was too aggressive. But one of
the prosecutors involved in that case, now mayor of the city of
New York, Rudolph Giuliani, felt that Mr. Rich should not have
been pardoned. I happen to agree with Mayor Giuliani on this.
On other things I disagree with him. Mayor Giuliani thinks, for
example, that one of the great traitors of our lifetime,
Jonathan Pollard, should be pardoned. And yet, of course, a
very respected former prosecutor, Joe DiGenova, feels he should
not be pardoned. Some favor--a pardon for Michael Milken.
Frankly, I am delighted the President did not grant one.
But, you see, the point I am making: different people take
different views. Concerns have been raised about the wisdom of
President Clinton's judgment in granting some of these pardons,
especially when they were granted in the waning hours and days
of his Presidency. Last year, Mr. Chairman, we had a hearing on
his clemency decisions regarding certain members of the FALN. I
also disagreed with those pardons.
Perhaps this hearing will yield insights that will help
guide the current President and future Presidents in the
exercise of their constitutional power of clemency. I worked
last year with my friend Senator Hatch in a bipartisan effort
to improve the pardon process and to better ensure that crime
victims and law enforcement views were taken into account. In
advance of this hearing, I wrote the White House Counsel asking
what the current White House view is with regard to the pardon
process. I asked about efforts to establish procedures to make
sure that the opinions of both crime victims and law
enforcement are taken into consideration befpre pardon is
granted.
President Bush has indicated he has little enthusiasm for
congressional investigations of President Clinton's final acts
in office, including the pardons. He told reporters yesterday,
``I think it is time to move on.''
I agree, and I am optimistic that we can make progress on a
number of fronts. Senator Hatch and I introduced significant
crime legislation yesterday. We expect the Senate today will
consider another bipartisan effort that he and I have
introduced updating our intellectual property laws. While I
rarely predict votes in the Senate, I predict the Senate will
pass it.
Now, however, this committee is going to return to the
subject of the House hearings last week. We will have the
hearings on the pardon of Marc Rich. But we will also review
the question of what should be the overall standards for this
pardon or any other. I applaud Senator Specter in this regard.
I hope that we will not go into the kind of permanent
partisan investigations that we saw in the last two Congresses.
I would like to view President Clinton's pardons as a whole and
in their historical and constitutional context, not just one or
two controversial cases. The President does have the pardon
right, as most Governors do. When I was a prosecutor in
Vermont, I oftentimes disagreed with the Governor's decision to
pardon somebody I might have prosecuted, but I respected the
fact that he had an absolute right to do so.
The pardon is absolute. It is absolute for Republican
Presidents. It is absolute for Democratic Presidents. I have
served with both Republican and Democratic Presidents over the
last 26 years. President Carter used the power more than 560
times, President Reagan pardoned more than 400 times, President
Bush more than 75 times. President Clinton used his pardon
power about the same as President Reagan. There were instances
with which I agreed. There were also instances with each of
these Presidents where I disagreed.
When the Framers of the Constitution drafted the Pardon
Clause in 1787, they considered the potential for Presidential
abuse. They debated whether one or both branches of Congress
should play a role in the pardoning process. In the end, they
rejected proposals to check the power through congressional
oversight because, in the words of Alexander Hamilton, ``one
man appears to be a more eligible dispenser of the mercy of the
government than a body of men.'' And, by an large, our National
experience supports this.
Chief Justice Rehnquist wrote in a 1993 decision,
``Clemency is deeply rooted in our Anglo-American tradition of
law, and is the historic remedy for preventing miscarriages of
justice where judicial process has been exhausted.''
We saw such an example last week when Earl Washington was
released from prison after serving more than 17 years,
including more than a decade on death row, for a crime he did
not commit. Virginia Governor James Gilmore pardoned him based
on DNA evidence that proved his innocence. But had there not
been an earlier act of clemency by a previous Virginia
Governor, Earl Washington would have been executed in 1994 for
a crime we now know he did not commit.
There are many pardons granted by President Clinton I
support but, unfortunately, they were overshadowed by the Marc
Rich pardon. President Clinton made a strong statement by
commuting the sentences of more than 20 men and women who were
serving long prison terms for relatively low-level drug
offenses. Several of them had been victims of domestic abuse.
In many cases, the sentencing judge and the prosecutor had
recommended in favor of clemency. These are compelling cases
for Presidential clemency. I hope at some point we can
appreciate the injustice being caused by mandatory minimum
sentences which take away from Federal judges the discretion
that would allow them to consider the circumstances of the
cases before them.
President Clinton commuted the sentence of the first person
who was sentenced to death under the Federal drug kingpin
statute, David Ronald Chandler. Why? Because it turns out that
the star witness was the actual triggerman, Charles Ray
Jarrell. He now says that he killed Martin Shuler, his brother-
in-law, for family reasons having nothing to do with Chandler.
Ben Wittes of the Washington Post reviewed this case in
December 1998. He said, ``The only system that would err on the
side of executing a man whose chief accuser has recanted is one
that fundamentally doesn't care whether it executes innocent
people.'' The President stepped in to grant clemency in the
right place.
We should keep in mind the old saying that hard cases make
bad law. We should not rush to amend the Constitution because
of a particular pardon decision we may dislike. In fact, we
should not amend the Constitution because we do not like a
judicial decision. I have certainly seen a lot of judicial
decisions I do not like, but I do not believe we should amend
the Constitution as a result of them.
I have seen pardons granted by each of the Presidents I
have served with, other than the current President Bush, who
has only been in office a few weeks. I have disagreed with some
of the pardons of each of these Presidents. But I certainly do
not want to take away from them the ability to pardon. So,
let's not let public concern over the Marc Rich pardon send us
off on a venture to try to tinker with our National charter.
I have a statement, Mr. Chairman, of former Pardon Attorney
Margaret Love I would like to put in the record. I will also
put my formal statement in the record.
Chairman Hatch. Without objection, so ordered.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick Leahy, a U.S. Senator from the State of
Vermont
Today's hearing may perform useful and constructive service to the
American people and our institutions of government. Or it may not.
Today's hearing may illuminate valuable lessons for the future. Or it
may degenerate into partisan recriminations about the past. I hope it
will do the former.
From what I have read about the pardon of Marc Rich, it appears to
me to be another occasion on which I disagree with a president's use of
his constitutional pardon power. I have read that it was supported by a
number of well-respected lawyers, by counsels who have staffed
Democrats and counsels who have staffed Republicans. I understand that
in addition to Mr. Quinn, from whom we will hear today, this effort
also had the backing, for example, of Lewis Libby, who is currently
serving as the Chief of Staff to Vice President Cheney.
Concerns have been raised about the wisdom of President Clinton's
judgment in granting certain of his pardons and about the propriety of
the process that led to them in the waning days and hours of his
presidency. Last year we had a hearing on his clemency decisions
regarding certain members of the FALN. I disagreed with him then, as
well.
This hearing may yield insights that will help guide the current
president and future presidents in the exercise of their constitutional
power of clemency. I had worked last year with Senator Hatch in a
bipartisan effort to improve the pardon process and to better ensure
that crime victims and law enforcement views were taken into account.
In advance of this hearing, last week I wrote to the White House
Counsel asking what the current White House view is with regard to the
pardon process and about those efforts to establish procedures to
ensure that the views of crime victims and law enforcement officials
were taken into account when the president considers use of his pardon
power.
President Bush indicated that he has little enthusiasm for
congressional investigations of President Clinton's final acts in
office, including the pardons. Yesterday he told reporters: ``I think
it's time to move on.'' I am inclined to agree, and I am optimistic
that we can make progress on a number of fronts. Yesterday Senator
Hatch and I introduced a major anti-crime and anti-drug crime package,
and we expect that the Senate today will be considering another
bipartisan measure updating our intellectual property laws. Given that
this Committee has chosen to return to the subject of the House
hearings last week and to devote today's hearing to the pardon of Marc
Rich, I trust that there will be no bandying about of unsupported
accusations or the return to the politics of permanent partisan
investigation that so tarnished the last two Congresses.
We need to view President Clinton's pardons as a whole and in their
historical and constitutional context, not focus exclusively on one or
two controversial cases. The pardon power lies with the president, just
as it lies with the governor in each of the states. When I was State's
Attorney for Chittenden County, I did not always agree when the
Governor of Vermont used his clemency power, but I understood that it
was his power to exercise as he saw fit.
The pardon power is absolute. It is absolute for Republican
presidents, and it is absolute for Democratic presidents. There were
numerous exercises of this constitutional power by the Republican and
Democratic presidents with whom I have served over the last 26 years:
President Carter used this power more than 560 times, President Reagan
more than 400 times, and President Bush more than 75 times. They have
not always been instances with which I agreed. President Clinton used
his clemency power relatively infrequently by 20' Century standards--
certainly less than President Reagan used it. I have served with five
presidents, Democrats and Republicans, before the current occupant of
the White House, and I have agreed with each of them on some of their
pardon decisions and disagreed with each of them from time to time, but
I recognized that they are and should be the president's decisions to
make.
When the Framers of our Constitution drafted the pardon clause in
1787, they considered the potential for presidential abuse of the
pardon power. They debated whether one or both branches of Congress
should play a role in the pardoning process. In the end, they rejected
proposals to check the power through congressional oversight because,
in the words of Alexander Hamilton, ``one man appears to be a more
eligible dispenser of the mercy of the government than a body of men.''
By and large, our national experience supports that view.
By establishing the pardon power in the Constitution, the Framers
recognized the important role it plays in our imperfect justice system.
As Chief Justice Rehnquist wrote in a 1993 decision:
``Clemency is deeply rooted in our Anglo-American tradition of law,
and is the historic remedy for preventing miscarriages of justice where
judicial process has been exhausted. . . . It is an unalterable fact
that our judicial system, like the human beings who administer it, is
fallible. But history is replete with examples of wrongfully convicted
persons who have been pardoned in the wake of after-discovered evidence
establishing their innocence.'' (Herrera v. Collins, 506 U.S. 390
(1993)).
We saw such an example just this week, when Earl Washington was
released from prison after serving more than 17 years, including more
than a decade on death row. Virginia Governor James Gilmore pardoned
Earl Washington for the crime that sent him to death row based on DNA
evidence that established his innocence. Were it not for an earlier act
of clemency by a previous Virginia governor, Earl Washington would have
been executed in 1994 for a crime that he did not commit.
In discussing individual pardons, we should not overlook the value
of the pardon power in the vast majority of largely uncontroversial
cases in which President Clinton and his predecessors have exercised
it. Hamilton wrote that the pardon power serves the dual goals of
humanity and good policy. Sadly, the many pardons that President
Clinton granted in this spirit have been overshadowed by the
controversy surrounding the Marc Rich pardon.
President Clinton made a strong statement by commuting the
sentences of more than 20 men and women who were serving long prison
terms for relatively low-level drug offenses. Several of those released
had been victims of domestic abuse. In many cases, the sentencing judge
and prosecutor had recommended in favor of clemency. Some of those are
compelling cases for presidential clemency. I hope that we will look at
those pardons and begin to appreciate the injustice being caused by
mandatory minimum sentences by taking away from federal judges the
discretion that would allow them to consider the circumstances of the
case before them before imposing sentence.
President Clinton also commuted the sentence of the first person
who was sentenced to death under the federal drug kingpin statute.
David Ronald Chandler was convicted in 1991 of ordering the contract
killing of a man named Martin Shuler. The Government's star witness was
the triggerman, Charles Ray Jarrell, who recanted his testimony after
the trial. Jarrell now claims that he killed Shuler--his brother-in-
law--for family reasons having nothing to do with Chandler. Ben Wittes
of The Washington Post reviewed the Chandler case in December 1998 and
concluded as follows:
``I don't pretend to know whether Chandler procured Shuler's death or
which of Jarrell's stories is closest to the truth. . . . What
I do know is that the only system that would err on the side of
executing a man whose chief accuser has recanted is one that
fundamentally doesn't care whether it executes innocent people.
If the death penalty is even to make a pretense of being
something more than monstrous, the criminal justice system has
to stop at nothing to avoid wrongful executions.''
I share these views and commend President Clinton for his
action in commuting Chandler's sentence. Chandler would have
been the first person put to death under federal law since
1963; now he will serve a life term.
If we view the controversies surrounding certain of
President Clinton's pardons in the broader context of our
constitutional scheme, our justice system, history and pardon
practice, we may well learn valuable lessons for the future.
But we should keep in mind the old saying that hard cases make
bad law: Rushing to amend the Constitution because of a
particular pardon decision that we may dislike is no wiser than
rushing to amend the Constitution whenever we dislike a
judicial decision. We should not let public concern over the
Marc Rich pardon -understandable concern, in my view--send us
off on yet another reckless adventure to try to tinker with our
national charter, and so imperil both the separation of powers
and the ``fail-safe'' mechanisms in our criminal justice system
that have served this country so well for so long.
I thank the witnesses for coming today, and look forward to
hearing their testimony.
Chairman Hatch. Normally we only have the chairman and the
ranking member make statements, but we are going to allow
everybody to make statements today. We will put that statement
in the record also, Senator.
So we will turn to Senator Specter, and I will turn the
gavel over to you, Senator.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. [Presiding.] Thank you very much, Mr.
Chairman. My thought about these hearings is that they ought to
look forward to see whether any changes ought to be made on the
President's power to pardon, and we will seek not to duplicate
what the House of Representatives has done, but we will be
taking a look at some specific cases like the Marc Rich case
and like the Braswell case to see what procedures have been
followed with a view to considering whether there ought to be
changes.
When Walter Mondale was a U.S. Senator, in September 1974,
he proposed a constitutional amendment which would authorize
the Congress on a two-thirds vote of the House and a two-thirds
vote of the Senate to overturn a Presidential pardon. The power
of the President to pardon is the only power in the
Constitution which is not subject to some check and balance,
and that power was derived from the monarch's authority in the
day when the King could do no wrong. And it was absolute.
When Senator Mondale introduced his constitutional
amendment, he quoted Hamilton in the Federalist Papers,
expressing the concern that there is a method ``in seasons of
insurrection or rebellion'' for putting a prompt end to
domestic instability through a prompt offer of a pardon, so the
use of amnesty in the early days of the Republic, but that
reason obviously has long since gone.
I believe we ought not to amend the Constitution lightly,
but the Founding Fathers provided for amendment procedures for
updating in accordance with modern needs. If the Mondale
amendment were to be adopted, it would provide an opportunity
for congressional legislation as an addendum to establish
procedures. There are Department of Justice regulations which
require or call for a number of steps to be taken, but
President Clinton did not follow those procedures, and, in
fact, he is not bound to since he has the absolute power. But
if the Mondale amendment were to be enacted, an addendum could
be provided so that Congress could set up statutory
requirements which would require that the FBI be consulted or
the prosecutor be consulted or victims be consulted so that the
President would have a full picture on what went on.
Today we are going to be dealing with the Rich case
specifically as an illustration of what happened and what might
be changed. Two hours before President Clinton's term of office
expired, documents were released to the media, including two
pages entitled ``An Executive Grant of Clemency,'' and reciting
that after considering the request for Executive clemency, but
in many situations there had not been a request. And on many of
the cases, the Pardon Attorney, who will testify here in a few
moments, was not given an opportunity to review the matters in
advance. This document is purportedly signed by William J.
Clinton on January 20th.
Then another document in the matter, illustratively, for
Marc Rich was signed by Roger C. Adams in line with the
authority which President Clinton had specified in his
document: ``I hereby designate and direct and empower the
Pardon Attorney as my representative to sign each grant of
clemency to the persons named herein. The Pardon Attorney shall
declare that his action is the act of the President being
performed at my direction.'' The document signed by Mr. Adams
is dated January the 20th.
One question which arises is whether this document was
issued on January 20th. On the face, it appears that there were
so many that they could not have been issued on January 20th.
As of February the 9th, I am advised that many of the papers to
be issued by the Pardon Attorney had not been issued.
So there are a number of legal issues which arise. Can the
President delegate power to someone to be exercised after his
term ends? Certainly the President had no power to act as
President after noon on January 20th. A real question exists as
to whether Mr. Adams could carry on duties after the 20th if
there is a real issue as to what the Pardon Attorney knew, and
we are going to inquire into that here.
There is still one more document, among many others, which
is a memorandum to the Director of the Office of Public Affairs
from Roger C. Adams, Pardon Attorney, bearing the initials
R.C.A., subject, Marc Rich. We will ask Mr. Adams about it.
``On the above date, President Clinton granted Mr. Rich a full
and unconditional pardon after completion of sentence.'' Well,
there was no completion of sentence. There was no sentence. If
the pardon is conditioned upon completion of sentence and there
is no sentence, is the pardon valid? What was the President's
intent? Did he think Marc Rich was to complete a sentence? Did
he instruct Mr. Adams to say that the pardon would be granted
upon completion of the sentence? These are all issues to be
inquired into.
When the President issued many Executive orders, there was
a rush to get them into the Federal Register, which you have to
do before the President's term expires. Those which did not
make the Federal Register are not valid because the President
cannot act after noon on January 20th. And there are many
analogies where delegated authority ceases.
Technically, when a person writes a check authorizing the
bank to disburse funds, if that individual dies before the
check is negotiated, the check is invalid because when a person
ceases to live, the bank cannot carry out the delegation of
authority. And it may well be that these pardons, many of them,
including the pardon to Marc Rich, is invalid. And it may well
be that if he returns to the United States, he may do so at his
peril.
It is well known that the U.S. Attorney for the Southern
District of New York is not pleased with not being consulted
and with what was done here. And there is an indictment
outstanding, and the criminal law says that on an indictment
you can issue a warrant of arrest. And then a person can
interpose a pardon as a defense, which might be a way that the
pardon would be tested.
Just one other brief comment, following up on what Senator
Hatch, the chairman, had to say about the President testifying.
I would not invite the President to testify lightly, and I
think there needs to be a foundation laid if the President is
to be invited to testify. You have Ms. Denise Rich pleading the
privilege against self-incrimination, which raises the
suggestion of something incriminating having happened, and the
allegations about key conversations between Ms. Rich and former
President Clinton. If President Clinton is the only witness
available, that may create a reason to ask him to testify.
There has been a suggestion of a grant of immunity which
has been requested by the House of Representatives. There are
reports that the United States Attorney for the Southern
District of New York has initiated a criminal investigation.
Based on my experience as a prosecutor, I doubt that the
Justice Department is going to rush to grant immunity to Ms.
Rich at an early stage if an investigation is to be pursued.
And then there is the e-mail where President Clinton was
purported to have talked to the Democratic National Committee,
which, again, raises questions.
But we are going to pursue these matters, and we are going
to do so without partisanship and with a view to the future as
to whether something should be done to improve the procedures
for the future.
Senator Feinstein?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman. I just
want to make a couple of remarks on the history of pardons,
because pardons have a very colorful history in our country.
The Framers of the Constitution clearly set out that the
President had an unrestricted constitutional right to pardon
and to commute. And as one of the Framers noted, ``The only
restraint on the abuse of the pardon was the risk of damnation
of the President's fame for all future ages.''
And in the Federalist Papers, Alexander Hamilton argues
that at times of national stress, the Executive might have to
move very fast and, therefore, any legislative impediment would
slow down a pardon. Hamilton suggested that giving the
legislature some or all of the pardon power would politicize
the pardon process.
In 1795, George Washington issued pardons to leaders of the
Whiskey Rebellion. Jefferson pardoned deserters from the
Continental Army and supporters who were convicted under the
Alien and Sedition Act. Madison pardoned deserters to entice
soldiers to fight in the War of 1812. During the Civil War,
Abraham Lincoln gave pardons to Confederate sympathizers in
return for loyalty oaths to undercut rebellion. Truman gave
amnesty to individuals who violated the draft during World War
II. President Nixon gave Jimmy Hoffa a pardon in return for his
staying out of union management. President Ford pardoned
President Nixon, and so on and so forth.
The history of pardons is certainly a colorful history. I
am one that believes that a President is well advised to
carefully vet those pardons. And I think most of what has
happened happened because these pardons, a large number of
them, 140, were made at the very last moment of a President's
administration. Some were vetted. Some were not vetted. But I
certainly believe that a President should vet pardons, not only
with the Department of Justice, with the line prosecutor, with
judges, with victims. And we saw that in the Puerto Rican case
where none of the victims were consulted, and there was broad
concern about those pardons.
I have concerns not only about the Rich pardon but with a
number of the other pardons, and I hope to ask questions about
them. But the reason I am saying this is because a lot of
commentary has arisen as to whether the Congress should in some
way adjust or restrict the President's pardoning authority. I
do not believe that under the Constitution we would have the
legislative right to do that, and I do not believe it would be
well advised to do it.
The pardon and the commutation power is an absolute
Executive right under the Constitution of the United States,
and I think in terms of long-term history this Nation is
probably well served by leaving it that way.
Thanks very much.
Senator Specter. Thank you, Senator Feinstein.
Senator DeWine?
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, thank you very much. Let me
first congratulate you and congratulate Senator Hatch for
holding this hearing. It is important that we get the facts out
and get them out quickly. And I think it is also important,
after we have the facts out, that we move on as a country. So I
congratulate you.
There are some very, very troubling questions that have
been raised. The more you look into this matter, the more
troubling it becomes. And so I think it is important for us to
not only get the facts out today, but also to hear from our
witnesses, Mr. Adams, for example, in regard to what the normal
procedure is, how what happened in this particular case or
cases varied from the norm. I think that will tell us a great
deal.
I think, though, that we need to be cautious as a country
and as a Congress. This is clearly a very, very bad case. But
we need to be very cautious that we not let--what I would call
abuse of Presidential discretion, abuse of the pardon process,
abuse of this power--constitutionally granted to the President
of the United States cause us to do something that in the long
run we would regret.
I do not believe we should change the Constitution. I do
not believe, quite frankly, that we have the legislative power
needed to influence future Presidents' decisions concerning the
use of the pardon.
As has been pointed out by many people, the pardon power is
granted by the Constitution. It actually predates the
Constitution. It is not only a part of our Constitution but it
is a part of our long, long history, going back to Great
Britain. And it was a well-understood and well-accepted power
at the time the Constitution was written.
So I think we need to be very, very cautious. This country
has survived other mistakes. It has survived other abuses of
power. We will certainly survive this grievous abuse of power
as well. And I think once we have the facts, then we do need to
move on. But I think the American people have a right to know
what the facts are. And becuase of this right, and so I again
congratulate you, Mr. Chairman, for leading us through this
exercise and leading us through this search for the truth.
Thanks very much.
Senator Specter. Thank you, Senator DeWine.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I would like to
comment first on what I think are the legitimate purposes of
this hearing. One of those is to review President Clinton's use
of his constitutional power to grant pardons in the closing day
of his administration, with an eye toward making
recommendations about the process by which the Justice
Department reviews requests that the President exercise his
power.
We might also consider proposals for a constitutional
amendment to limit the President's power in some way, and I
frankly do not think that a hearing done in the heat of public
and press attention to a particular controversial pardon
granted by a single President in the last days of his office is
really the best way to give a proposed constitutional amendment
the full scrutiny it deserves. But that certainly is a
legitimate purpose for a Senate hearing.
I do not believe, however, that holding a hearing simply to
add to the public outcry over certain pardons or to launch
attacks against the President or people in his administration
is an appropriate use of our oversight authority. And so I am a
little disappointed at the title of this hearing, ``President
Clinton's Eleventh Hour Pardons.'' That sounds like a hearing
designed for public relations effect, not for a balanced and
forward-looking inquiry about an important constitutional power
of our Nation's Chief Executive. And I do want to recognize
that the chairman said, both as I heard on the ``Today'' show
and at the beginning of the hearing, that his purpose here is
to look to the future, and I do appreciate that.
I have concerns about certain of the pardons myself, as I
will discuss in a moment, but we do not have the power in this
body to undo President Clinton's pardons, subject of course, to
any of the points that the chairman was making about technical
legal issues. And so I hope that this hearing is more than just
an opportunity for Senators to criticize our last President. I
do not think hearings presented for that purpose--and, again, I
hope and assume this will not be such a hearing--are consistent
with the spirit of cooperation and bipartisanship that we
should be trying to create in this new evenly divided Senate.
Now, another purpose of this hearing might be to look at
those most recent pardons and see if any lessons can be drawn
concerning our criminal laws in this country. While they have
not received the attention of the Rich pardon in the media, 20
of the so-called eleventh hour pardons involve people who
received harsh mandatory minimum prison sentences for minor,
non-violent participation in drug-trafficking conspiracies.
Mandatory minimum sentences impose irreversible, tragic
consequences on many people in this country, particularly young
people and their families. So I hope this committee will
examine that issue at some point this year and perhaps learn
from the people who were involved in these cases about the
human dimension of mandatory minimum sentences and whether they
are actually succeeding in accomplishing what their proponents
predicted and hoped to accomplish.
As I look at my friend, Mr. Holder, who I think did a
superb job in his position, I am reminded of the role of the
pardon and the clemency power vis-a-vis the awesome power of
the Federal Government to execute people and the role that
might play if there are questions of racial disparity, as have
been suggested, if there are questions perhaps of innocence, if
there are questions perhaps of inadequate legal representation.
The notion of a constitutional amendment would allow the
Congress to override by a super-majority the judgment of a
President that somebody's life should be spared certainly gives
me pause.
Mr. Chairman, while I am not entirely comfortable with the
potential tone of the hearing, I do believe that legitimate
questions have been raised about the pardon of Marc Rich in
particular, and for me, as for many Senators and many
Americans, suspicions about this pardon arise from the fact
that Marc Rich's ex-wife, Denise Rich, was a large donor to the
Democratic Party--not just a large donor, a huge donor.
According to press reports based on the research of the Center
for Responsible Politics, Ms. Rich donated $867,000 to
Democratic Party committees during the Clinton Presidency, and
most of that was, of course, soft money. She also donated
$66,300 to individual Democratic candidates in hard money. She
also contributed $450,000 to President Clinton's Presidential
library fund. These kinds of numbers can't help but raise some
questions about this pardon.
But let me also say that they put a question squarely to
the members of this committee and the Senate as a whole: Will
you do what it takes to end this corrupt soft money system that
allows contributions of this size to the political parties?
This is a system that is now providing at least an appearance
of corruption, and not only of our legislative process, not
only at our political conventions, but now in the very heart of
our criminal justice system.
There are members of this committee who have consistently
filibustered our attempts to ban soft money. I am happy to note
that Senator Specter has consistently supported reform. But for
other Senators who have blocked reform, let me point out that
the filibusters in 1994, 1996, 1997, and particularly in 1998
and 1999, when the House had passed a campaign finance reform
bill and prevented us from changing the law, basically allowed
it to be possible for Denise Rich to make these very large
contributions and to raise at least the appearance of
impropriety with regard to something as sacred as the pardon
power.
And remember, these same questions are going to be raised,
and raised legitimately, about anyone that President Bush
pardons during his term if friends, family, or associates of
the persons pardoned turn out to be contributors to the Bush
campaign or to the Republican Party.
So while there may be nothing that we can do about the
Clinton eleventh hour pardons, there is something that we very
clearly can do as a Congress to address the suspicions that
some pardons have been or will be based on improper influence,
and that, of course, is to pass campaign finance reform when it
comes to the floor of this Senate next month.
Thank you, Mr. Chairman.
Senator Specter. Thank you, Senator Feingold.
Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman. Just a couple of
comments.
First of all, the President obviously had his reasons for
granting these and other pardons. We are not going to know what
those reasons are unless the President himself tells us. The
only other way that we could learn is if there is a criminal
investigation based upon the information that has come to
public light so far, information which does indeed raise
serious questions about the possibility of improper influence.
But I think that our hearing today needs to focus on two
other potential actions. One is a constitutional amendment,
which I find no justification for and, frankly, do not see the
need for simply because there may have been one abuse of
discretion in this case.
There is, however, a second area, and that has to do with
statutory reform of the procedures within the Justice
Department which are currently regulated by internal Justice
Department regulations, which are on the public record. I find
that, based upon Mr. Holder's testimony, he did not acquit
himself or the Justice Department well in this case. According
to his written testimony, he knew that the regular procedures
had not been followed. He knew why it was important that those
procedures be followed. As the No. 2 person in the Department
of Justice, he had a responsibility to see that procedures that
were important were followed. And in my view--and I will be
anxious to hear from Mr. Holder here--there is nothing that
justified his inaction in this case. He was asked by Mr. Quinn,
according to his testimony, what his position would be on the
pardon of Mr. Rich, this the day before the Clinton
administration ended, and according to Mr. Holder's testimony,
``I told him that although I had no strong opposition based on
his recitation of the facts, law enforcement in New York would
strongly oppose it.''
So he had a sense that this would be a very controversial
pardon. He understood at that time that technically Mr. Rich
was not eligible for a pardon under the regulations of the
Department of Justice. And he also had to know that the failure
to follow the procedures was a deliberate attempt to avoid
those procedures because of the likelihood that a pardon would
not be recommended if the procedures were properly followed.
My view is that Mr. Holder should have said to Mr. Quinn at
that moment, You haven't followed the procedures, you need to
follow the procedures, you know what they are, Mr. Quinn, you
need to file with the Pardon Attorney, and I am going to call
the President and warn him against taking action in this case
because we haven't vetted this request, as is the normal case,
and that there are dangers in moving ahead with this pardon in
the absence of such vetting. That would have been the proper
course of action, and I can find nothing that would excuse Mr.
Holder from following that course of action.
So my suggestion here is that we also focus on the
possibility of legislating a set of procedures which personnel
of the Department of Justice would have to follow in the event
they became aware of a potential pardon, procedures that would
ensure that the pardon request is handled in the proper way.
That way at least we could avoid the kind of problem that
occurred here unless a President was blatantly willing to
proceed against the recommendation of his own Department of
Justice.
I will be anxious to get the witnesses' views on whether
such changes in procedure would be a good idea, at least to
resolve these kinds of issues in the future.
Thank you, Mr. Chairman.
Senator Specter. Thank you, Senator Kyl.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Senator Specter. I
will not defend the pardon of Marc Rich. Marc Rich is hardly a
sympathetic figure. Charged with a serious violation of law,
Mr. Rich chose to flee the United States and renounce his
American citizenship.
The circumstances surrounding his pardon involving campaign
contributions certainly raise the appearance of impropriety, if
not much more. But it is curious to me that the issue of the
Presidential power to pardon is being considered today by this
committee with the assumption that this action by former
President Clinton was the only controversial pardon in recent
memory.
Senator Specter has even suggested that former President
Clinton be called before this committee. Well, in the interest
of balance, fairness, and in the spirit of bipartisanship,
should this committee also call former President George Bush to
explain why, on Christmas Eve, 1992, he issued a pardon for
former Secretary of Defense Caspar Weinberger and five others
who had been convicted of lying to Congress in the Iran-contra
controversy? It is unlikely that former President Bush will be
called or his actions even scrutinized by this committee.
It appears that in our investigation of the Presidential
right to pardon, in looking forward, as Senator Specter
suggests, we can only reflect on one former President at a
time. But if we are sincere about amending the Constitution or
reforming the laws relating to pardons, the committee should
not confine its inquiry to one action by one President. If this
hearing is about genuine reform, it should be open and
balanced. It should consider the use of the Presidential pardon
historically by Presidents of both political parties. If it is
about a parting shot at former President Clinton, then I have
to agree with President George W. Bush: It is time to move on.
Thank you, Mr. Chairman.
Senator Specter. Thank you, Senator Durbin.
Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
The power to pardon is a legitimate power. It is one that
ought to be exercised with great care. I believe in the role of
the Pardon Attorney. We had hearings in the last Congress on
the Puerto Rican terrorist pardons, which I thought was a
breathtakingly inexcusable action by the President, and I
believe I suggested to Mr. Adams that I did not see how he
could remain in office as a Pardon Attorney, turning down on a
daily basis people who had committed very minor crimes and who
lived a life of success and contributed to their community,
when those convicted of violent crimes who are still serving
their time in jail, and who never even asked for forgiveness or
admitted their error are granted pardons.
I think the pardon power is a historic power that the
President has, and I do not dispute that. Some say the
President can make this decision, there is nothing we can do
about it, so we just have to hush and not say anything about
it.
From what I hear today, it is unlikely, perhaps, that we
will have a constitutional amendment to change it. So what do
we do when a President on the last day in office abuses his
power to grant a series of pardons that do not meet any fair
test of right and justice? Is there no basis for us to question
it and to ask perhaps maybe we do need a constitutional
amendment, maybe we do need to look at where we are going?
I think it is a proper hearing, and I think we should have
a hearing and discuss it and ask ourselves whether perhaps a
constitutional amendment, Mr. Chairman, is legitimate. This is
an unfettered power, a power given with no review whatsoever,
contrary to almost everything else in our Constitution that has
checks and balances. So I am not sure it is the right thing,
but I am certainly not willing to dismiss it if we are going to
have Presidents on their last day in office just granting
pardons on these kind of bases.
And, frankly, the pattern here is troubling. Let's talk
about the FALN Puerto Rican terrorist group. Fourteen members
were pardoned. They had claimed responsibility for 130 bombings
in the United States, and the reign of terror resulted in six
deaths and permanent maiming of dozens of others. They were
pardoned without even an admission of wrongdoing on their
behalf, without even a statement that they were sorry for what
they had done.
In this batch, President Clinton in the last minute
pardoned two members of the Weathermen, a radical terrorist
organization whose goal was to overthrow American capitalist
society. The first pardon recipient, Susan Rosenberg, was
convicted in 1985 for possession of 740 pounds of dynamite,
including a submachine gun. The second, Linda Sue Evans, was
convicted in 1983 for her role in a bombing in the Senate
corridor of the U.S. Capitol Building, as well as for illegally
buying firearms.
Marc Rich illegally traded in oil with the terrorist states
of Iran, Iraq, and Libya. Each of these regimes sponsored
terrorist attacks on American citizens, including the bombing
of Pan Am Flight 103 over Lockerbie, Scotland, that we have
just had a trial about.
Marc Rich was among the ten most wanted fugitives by the
United States Marshals Service after he fled the country
immediately prior to his criminal indictment for tax evasion.
In addition, Interpol had issued a red notice, which I have
here and would offer for the record, for the arrest of Marc
Rich in multiple foreign jurisdictions.
Senator Specter. It will be admitted without objection.
Senator Sessions. I was troubled by the William Borders
pardon. He was convicted in 1981 of taking money to bribe a
Federal judge who was later impeached, and the evidence against
Borders was overwhelming and conclusive and recorded by the
FBI, and the judge was impeached based on the facts arising out
of this incident.
So I think this is a series of pardons--and there are some
others here that I will not go into at this point--that are
very troubling. The American people have a right to have the
full facts come out. If we are not going to have a
constitutional amendment to allow some sort of review of this
unfettered power, at the very least any President needs to know
that if he acts irresponsibly, even though he is not seeking
re-election and does not have the chance to run for re-election
again, that he would be subject to at least review and
criticism, if need be, by the Congress.
So, Mr. Chairman, I wish this matter would go away.
President Bush says he wishes it would go away. But justice is
important. How we handle pardons is important. As a Federal
prosecutor for 15 years, I have signed off on pardons. I have
objected to pardons and I have not objected to pardons. But I
have always tried to consider it objectively and fairly. Has
the person served his time? Was the crime exceptionally
serious? If it is an exceptionally serious crime, I doubt there
should ever be a pardon. If the crime was not exceptionally
serious and the person has lived a healthy life since,
contributed to his community, the pardon process calls for the
Pardon Attorney to do an inquiry. The Pardon Attorney then
calls the Federal prosecutor; they called me when I was one
many times. They call the victims of the crime. They talk to
the Federal judge who tried the case. They talk to the
probation officer who supervised the probation. I must say that
I never had a pardon request while a person was still in jail.
I never even saw one come across my desk where the person was
still in jail or a fugitive and hadn't been tried.
So you ask all these people, and the President ultimately
makes the decision, and the Pardon Attorney makes a
recommendation. Seeing what we have today indicates to me that
this system is completely out of control. This was an abuse of
process, and the President deserves to be criticized for it.
And we need to find out exactly what happened, and I would
suggest further that I am not sure from what I have seen, based
on the law of bribery in the United States, that if a person
takes a thing of value for himself or for another person that
influences their decision in a matter of their official
capacity, then that could be a criminal offense. And I think at
this point, from what I see, the FBI and the United States
Attorney's Office in New York ought to be looking at this
matter.
I feel real strongly about it, Mr. Chairman, and thank you
for your leadership.
Senator Specter. Thank you very much, Senator Sessions.
Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman.
Mr. Chairman, the issues we are examining today are as
perplexing as they are troubling. To my mind, there can be no
justification for pardoning a fugitive from justice. It does
not matter that the fugitive believed the case against him was
flawed or weak. It does not matter that the fugitive was
enormously philanthropic. Pardoning a fugitive stands our
justice system on its head and makes a mockery of it.
One of the great strengths of our criminal justice system
is that it is just that: a system. By allowing someone to
choose to opt out of that system by fleeing and then opt into
that system to get a pardon perverts the system entirely.
But where does that leave us going forward? All 100 of us
in the Senate might disagree with this pardon, but there is a
whole lot of nothing we can do about it. In the Constitution,
the President's power to pardon is absolute. The President, in
the wisdom of the Founding Fathers, can pardon anyone for any
reason at all. It is a power of the President that is kept in
check only by the ballot box and the judgment of history. To
change the Constitution requires careful thought and should not
be based on one case or one moment in history. And a statutory
framework requiring the President to follow certain steps
before issuing a pardon would surely be unconstitutional.
So I think we should be leery of going overboard and
launching new rounds of extended congressional investigations
and hearings that could divert Congress from the work we need
to accomplish this year. Investigations like this one have a
way of spinning out of control, and before we know it, summer
will be here, and we will still be focused on President
Clinton's pardons. That I think would be a disservice to the
American people.
It is legitimate to ask questions that are being asked
today, but I hope most of my colleagues would agree with
President Bush that at some point soon we need to move on. If
there are allegations of criminal wrongdoing, that is something
for the proper authorities, not this committee, to look at.
To be sure, the President may have unbounded power to grant
a pardon, but that does not mean that those seeking pardons can
do anything they want to get one.
In the end, I think history will judge some of the pardons
we have seen in the last 30 years by many Presidents quite
poorly. But I hope that here in Congress we can start soon to
focus on the future and not let our quarrels with prior
administrations mire us in the past.
Senator Specter. Thank you, Senator Schumer.
Senator McConnell?
STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator McConnell. I want to commend the committee's
efforts, and particularly those of Senator Specter, to try to
determine the rationale behind what appears to be an
unjustified exercise of the Executive's pardon power. While the
President alone possesses the power to pardon, it is important
to remember that he is not personally exempt from Federal laws
that prohibit the corrupt actions of all Government officials.
If, for example, President Clinton issued a pardon to Marc
Rich in exchange for donations to his Presidential library,
this would indeed be a violation of 18 U.S.C. Section 201(b).
This statute provides, in relevant part, that any public
official who accepts anything of value in return for the
performance of any official act shall be fined or imprisoned
for not more than 15 years, or both, and may be disqualified
from holding any office of honor, trust, or profit under the
United States.
But while it may be advisable for us to explore the facts
and circumstances that could constitute a violation of this
statute, this is ultimately a matter for the U.S. Department of
Justice and the United States Attorneys, not the Congress, for
it is the executive branch, not we, which must enforce existing
law.
And let me be clear. What is at issue here is a potential
violation of existing law, and what is needed, if anything, is
the enforcement of that law, not the enactment of an additional
law, and certainly not a change to our Constitution.
No one would dispute that if in exchange for money a
prosecutor dropped charges against an individual who had been
indicted, then the prosecutor would be guilty of violating
existing Federal law. No one would argue that we needed new
laws in response to such a single corrupt act.
Therefore, I urge the Congress to use caution when
determining whether legislative action is needed in response to
the actions of President Clinton. We should not overreact in
response to the misdeeds and misbehavior of one man. We have,
in my opinion, unwisely traveled down that road before. After
Watergate, we passed an unprecedented restriction on the rights
of political speech and association in the name of campaign
finance reform, most of which was struck down by the United
States Supreme Court as a violation of the First Amendment. And
we, of course, continue that debate up to today, and we will
resume it on the floor of the Senate next month.
Also, in the wake of Watergate, we enacted an independent
counsel statute that took us 20 years to get off the books.
Fortunately, we let it expire in 1999, and I hope we have seen
the end of that.
And we should be particularly careful about changing our
Nation's fundamental document. Our Constitution has been
amended 27 times in 200 years, and we all recall that 10 of
those were at one time. When we have embarked on the
extraordinary course of amending our Constitution, it has
typically been done to address extraordinary problems that were
not readily solvable through ordinary means, ensuring, for
example, that former slaves enjoyed due process and equal
protection of the law, guaranteeing that women as well as men
are allowed to exercise the franchise, making sure that young
Americans who may be required to fight for their country are
able to have a say in its governance.
I submit that the potential abuses of Executive power this
hearing will explore, as troubling and as inexcusable as they
may be, are not so widespread and so major as to warrant
changing our Constitution.
In closing, let me again commend the committee, and
particularly you, Senator Specter, for these hearings. I think
this is an important inquiry, and I am glad that we are having
it.
Thank you.
Senator Specter. Thank you, Senator McConnell.
Mr. Adams, Mr. Holder, would you rise for the
administration of the oath? Do you solemnly swear, Mr. Roger
Adams, Mr. Eric Holder, that the testimony you will give before
this Senate Judiciary Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Holder. I do.
Mr. Adams. I do.
Senator Sessions. Mr. Chairman, can I offer for the record
a letter I received from Joseph D. Hubbard, a district attorney
in Alabama, a fine district attorney who has been given a lot
of important cases over the years for the State, who tried the
Chandler case that the ranking member referred to earlier. He
opposed this pardon, and I wanted to offer a letter for that.
He personally participated as a cross-designated United States
Attorney and tried the case, and it involved the murder of an
informant ordered by a major drug-dealing individual. And he
believes the commutation of that sentence was in error.
Senator Specter. Without objection, it will be admitted.
We have three panels. We request that the witnesses limit
their opening statements to 7 minutes, and the Senators' rounds
will be 5 minutes in duration on questioning. So we will set
the clock in that way.
Mr. Adams, we will begin with you.
STATEMENT OF ROGER ADAMS, PARDON ATTORNEY, UNITED STATES
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Adams. Good morning, Mr. Chairman. I'm here today at
the committee's request to provide information about how my
office, the Office of the Pardon Attorney, normally handles
clemency petitions and to describe why my office was not able
to follow our normal procedures in the case of President
Clinton's grants of pardon to Marc Rich and Pincus Green on the
morning of January 20, 2001.
Mr. Chairman, I have submitted a statement that I request
be made part of the record, and I will summarize--
Senator Specter. Without objection, it will be made part of
the record in full.
Mr. Adams. Thank you.
Mr. Chairman, executive clemency petitions most commonly
request relief in the form of pardon or commutation of
sentence. The Department of Justice processes requests for
executive clemency in accordance with regulations promulgated
by the President and set forth at 28 C.F.R. Sections 1.1
through 1.11. These regulations provide internal guidance for
Department of Justice personnel who advise and assist the
President in carrying out the pardon function, but they create
no enforceable rights in persons applying for executive
clemency and do not restrict in any way the plenary clemency
authority granted to the President under Article II, section 2
of the Constitution. While the regulations thus govern the
process for clemency requests submitted to the Department, they
do not govern requests submitted directly to the President.
Under the provisions of 28 C.F.R. Section 1.2, a person
does not become eligible to file a pardon request with the
Department until the expiration of a 5-year waiting period that
commences upon the ate of the individual's release from
confinement for his most recent conviction, or if no condition
of confinement was imposed as part of that sentence, the date
of conviction. Moreover, the same regulation stipulates that no
petition for pardon should be filed by an individual who is
then on probation, parole, or supervised release. As the
foregoing indicates, a person who has not yet been convicted or
has not fully served the sentence for the Federal crime for
which pardon is sought is ineligible for pardon or to apply for
a pardon under the regulations that guide the Department of
Justice's processing of pardon requests. However, these rules
do not bind the President. The President retains the authority
under the Constitution to consider a pardon request from an
individual who is ineligible to apply under the regulations or
who has not applied at all, and to grant clemency to such a
person if he believes such action is appropriate.
A pardon request is typically processed in the following
manner. The pardon applicant files his clemency petition,
addressed to the President, with the Office of the Pardon
Attorney. He is free to utilize the services of an attorney or
to act on his own in seeking a pardon. The standard form
utilized for this process requests information about the
offense, the petitioner's other criminal record, his employment
and residency history since the conviction and other
biographical information, and his reason for seeking a pardon.
The application must be signed and notarized, and the applicant
must also submit three notarized affidavits and character
references who know of his conviction and support his pardon
request.
When my offices receives a pardon petition, it is screened
to ensure that the applicant is, in fact, eligible to seek a
pardon--in other words, that the crime for which the pardon is
sought is a Federal offense and that the waiting period has
been satisfied.
If the petitioner is ineligible to apply for a pardon under
the regulations, he is so informed. If the application is
incomplete, further information is sought from the petitioner.
As an initial investigative step in a pardon case, the
Office of the Pardon Attorney contacts the United States
Probation Office for the Federal district in which the
petitioner was prosecuted to obtain copies of the pre-sentence
report and the judgment of conviction, as well as information
regarding the petitioner's compliance with court supervision
and to ascertain the Probation Office's views on the merits of
granting the pardon request.
If review of the pardon petition and the data obtained from
the Probation Office reveals information that clearly excludes
the case from further favorable consideration, my office
prepares a report to the President for the signature of the
Deputy Attorney General recommending that pardon be denied.
Alternatively, if this initial review indicates that the case
may have some merit, it is referred to the FBI so that a
background investigation can be conducted.
The FBI report, when it is completed, is reviewed by my
staff to ascertain whether favorable consideration of the case
may be warranted. If the investigation reveals derogatory
information of a type that would render pardon inappropriate
and warrant denial of the request, my office prepares a report
to the President, again, through the Deputy Attorney General,
recommending this result.
On the other hand, if the FBI report suggests that
favorable treatment may be warranted or in cases which are of
particular importance or which raise a significant factual
question, the Office of the Pardon Attorney requests input from
the prosecuting authority, either a U.S. attorney, a division
of the Justice Department, and in some cases an independent
counsel. And we also request information from the sentencing
judge.
If the individual case warrants, other Government agencies,
such as Internal Revenue Service and INS, may be contacted as
well. In appropriate cases in which the offense involved a
victim, the prosecuting authority is asked to notify the victim
of the pendency of the clemency petition and advise him that he
may submit comments concerning the pardon request.
Upon receipt of the responses to these inquiries, my office
prepares a report and a proposed recommendation for action upon
the case. The report is drafted for the signature of the Deputy
Attorney General and is submitted for his review. If the Deputy
Attorney General concurs with my office's assessment, he signs
the recommendation and returns the report to my office for
transmittal to the Counsel to the President. If, on the other
hand, the Deputy Attorney General disagrees with the
disposition proposed by the Pardon Attorney, he may direct the
Pardon Attorney to modify the Department's recommendation.
After the recommendation is signed by the Deputy Attorney
General, the report is transmitted to the Counsel to the
President for the President's action whenever he deems it
appropriate.
Now, when the President decides to grant clemency, whether
in the form of pardon or commutation of sentence, the Counsel
to the President informed the Office of the Pardon Attorney to
prepare the appropriate clemency warrant. Typically, if the
President intends to pardon a number of applicants, a master
warrant of pardon will be prepared for his signature. The
signed master warrant bears the seal of the Department of
Justice, lists the names of all of the individuals to whom the
President grants pardon, and directs the Pardon Attorney to
prepare and sign individual warrants of pardon reflecting the
President's action to be delivered to each pardon recipient.
The preparation of the individual warrants by the Pardon
Attorney is, therefore, a ministerial act which simply sets
forth the decision that the President has already made. The
individual warrant likewise bears the seal of the Department of
Justice and reflects that it has been prepared at the direction
of the President. When the individual pardon warrant has been
prepared, it is sent to the applicant, or his attorney if he is
represented by counsel, along with an acknowledgment form that
the pardon recipient completes and returns to the Pardon
Attorney's Office to reflect that he has received the warrant.
Mr. Chairman, I note that my time has expired. I would be
glad to dispense with the rest of my reading summary. It is
actually contained in my prepared statement, and I would be
glad to--
Senator Specter. Well, we are interested in what you have
to say, Mr. Adams, as to the procedures, so if you could
summarize, we would appreciate it, but take some extra time.
Mr. Adams. Let me move ahead with respect to the pardon of
Marc Rich and Pincus Green. Mr. Chairman, none of the regular
procedures that I have just described were followed.
The first time that I learned the White House was
considering these two persons for pardon was shortly after
midnight on the morning of Saturday, January 20, 2001. At that
time, I received a telephone call from the Office of the White
House Counsel advising me that they were at that time faxing me
a list of additional persons to whom the President was
considering granting pardons. When the facsimile arrived, among
the several names listed were Pincus Green and Marc Rich. Since
the fax included no other information about these persons, I
telephoned the White House Counsel's Office to advise that I
would need additional identifying data in order to request that
the FBI conduct criminal records checks on the named
individuals.
I might note, Mr. Chairman, I had been contacting the FBI
for the past several days with names of persons for whom the
White House wanted checks of criminal records and outstanding
warrants.
I was told by the White House Counsel staff that the only
two people on the list for whom I needed to obtain record
checks were Marc Rich and Pincus Green, and that it was
expected that there would be little information about the two
men because, to quote the words of the White House Counsel's
Office, they had been living abroad for several years.
I obtained the dates of birth and Social Security numbers
for Rich and Green from the White House Counsel's Office, and I
then passed this information along to the FBI by telephone so
that the records checks could be completed. Shortly thereafter,
the Counsel's Office faxed to my office a few pages that
appeared to have come from the clemency petition that had been
submitted to the White House on behalf of Mr. Rich and Mr.
Green by Jack Quinn and some other attorneys. The information
contained in these documents revealed that the pardon request
sought clemency for pending charges that had been brought by
indictment in the Southern District of New York some 17 years
earlier, and that Rich and Green had resided outside of the
United States ever since and were considered to be fugitives.
At that point, a member of my staff began to conduct a quick
Internet search for information about the two men.
While that search was ongoing, I received a facsimile
transmission from the FBI of records which confirmed that Rich
and Green were wanted fugitives whom law enforcement
authorities were willing to extradite for a variety of felony
charges, including mail and wire fraud, arms trading, and tax
evasion. Because I was concerned that the FBI transmission
would not be readable--because it was a second- or third-
generation facsimile transmission--if it were itself faxed to
the White House Counsel's Office, I wrote a quick summary of
the information regarding the outstanding charges against Rich
and Green and their fugitive status and faxed that to the
Counsel's Office shortly before 1 a.m. on January 20th.
Because of what we had learned about Rich and Green, I also
immediately contacted Deputy Attorney General Holder at home
through the Justice Department Command Center to alert him that
the President was considering pardons to the two men. Mr.
Holder indicated to me at that time he was aware of the pending
clemency requests by Rich and Green.
After receiving my short summary of the FBI's information
about Rich and Green, personnel from the White House Counsel's
Office called to ask that I fax them a copy of the material
that I received from the FBI itself, and I did this shortly
after 1 o'clock. I also included the limited information about
Rich's and Green's fugitive status and the charges against them
that my staff had been able to obtain at that point from the
Internet.
The only other time the names of Marc Rich and Pincus Green
had come to my attention was on the morning of January 19,
2001, when I first saw a copy of a letter dated January 10,
2001, that their attorney, Jack Quinn, had sent to Deputy
Attorney General Holder seeking his support for pardons for the
two men. The Justice Department transmittal sheet attached to
the letter indicated that on January 17th, the Department's
Executive Secretariat had assigned the Quinn letter to my
office for response and had sent a copy to the Deputy Attorney
General's Office for information. My office actually received
its copy on the afternoon of January 18th, and on the morning
of the 19th, I saw it in our mail.
Because neither Rich nor Green had filed a clemency
application with my office and because the White House
Counsel's Office had never indicated to me at that point that
pardons for these two persons were under consideration, I
proceeded to draft a short response on the morning of the
19th--and I decided to hold it until the following Monday--
advising Mr. Quinn that neither man had submitted a pardon
petition to my office and that if they wished to request
pardons, the application forms were available from my office
upon request.
What I have just described, Mr. Chairman, is the totality
of my involvement and the involvement of the Office of the
Pardon Attorney in the Rich and Green pardons. In my prepared
statement, Mr. Chairman, I have described how my office
prepared the individual warrants that Mr. Rich and Mr. Green, a
subject to which you alluded, and how we also prepared those in
the other cases. But in the interest of time, I will not go
over those now.
[The prepared statement of Mr. Adams follows:]
Statement of Roger Adams, Pardon Attorney, Department of Justice
Good morning, Mr. Chairman and Members of the Committee:
I am here today at the Committee's request to provide information
about how my office, the Office of the Pardon Attorney, normally
handles clemency petitions, and to describe the procedures we followed
with regard to President Clinton's grants of pardon to individuals,
including Marc Rich and Pincus Green, on January 20, 2001.
Executive clemency petitions most commonly request relief in the
form of pardon or commutation of sentence. The Department of Justice
processes requests for executive clemency in accordance with
regulations promulgated by the President and set forth at 28 C.F.R.
Sec. Sec. 1.1 to 1.11. These regulations provide internal guidance for
Department of Justice personnel who advise and assist the President in
carrying out the pardon function, but they create no enforceable rights
in persons applying for executive clemency and do not restrict in any
way the plenary clemency authority granted to the President under
Article II, Section 2 of the Constitution. While the regulations thus
govern the process for clemency requests submitted to the Department,
they do not govern requests submitted directly to the President.
A presidential pardon serves as an official statement of
forgiveness for the commission of a federal crime and restores basic
civil rights. It does not connote innocence. Under the provisions of 28
C.F.R. Sec. 1.2, a person does not become eligible to file a pardon
request with the Department until the expiration of a five-year waiting
period that commences upon the date of the individual's release from
confinement (including home or community confinement) for his most
recent conviction or, if no condition of confinement was imposed as
part of that sentence, the date of conviction. Typically, the waiting
period is triggered by the sentence imposed for the offense for which
the pardon is sought, but any subsequent conviction begins the waiting
period anew. Moreover, the same regulation stipulates that no petition
for pardon should be filed by an individual who is then on probation,
parole, or supervised release. As the foregoing indicates, a person who
has not yet been convicted or has not fully served the sentence for the
federal crime for which pardon is sought is ineligible for pardon under
the regulations that guide the Department of Justice's processing of
pardon requests. However, these rules do not bind the President. The
President retains the authority under the Constitution to consider a
pardon request from an individual who is ineligible to apply under the
regulations or who has not applied at all, and to grant clemency to
such a person if he believes such action to be appropriate.
A pardon request is typically processed in the following manner.
The pardon applicant files his clemency petition, addressed to the
President, with the Office of the Pardon Attorney. He is free to
utilize the services of an attorney or to act on his own behalf in
seeking pardon. The standard form utilized for this process requests
information about the offense, the petitioner's other criminal record,
his employment and residence history since the conviction and other
biographical information, and his reasons for seeking pardon. The
application must be signed and notarized, and the applicant must also
submit three notarized affidavits from character references who are
unrelated to him, know of his conviction, and support his pardon
request. When my office receives a pardon petition, it is screened to
ensure that the applicant is in fact eligible to seek a pardon (i.e.,
that the crime for which pardon is sought is a federal offense and that
the waiting period has been satisfied), to determine whether any
necessary information has been omitted from the application or whether
the applicant's responses to the questions require further elaboration,
and to ascertain whether the petitioner has described his efforts at
rehabilitation. If the petitioner is ineligible to apply for pardon
under the regulations, he is so informed.
If the application is incomplete, further information is sought
from the petitioner.
As an initial investigative step in a pardon case, the Office of
the Pardon Attorney contacts the United States Probation Office for the
federal district in which the petitioner was prosecuted to obtain
copies of the presentence report and the judgment of conviction, as
well as information regarding the petitioner's compliance with court
supervision, and to ascertain the Probation Office's views regarding
the merits of the pardon request. If review of the pardon petition and
the data obtained from the Probation Office reveals information that
clearly excludes the case from further favorable consideration, my
office prepares a report to the President for the signature of the
Deputy Attorney General recommending that pardon be denied.
Alternatively, if the initial review indicates that the case may have
some merit, it is referred to the FBI so that a background
investigation can be conducted.
The FBI does not make a recommendation to support or deny a pardon
request. Rather, the Bureau provides the Office of the Pardon Attorney
with factual information about the petitioner including such matters as
his criminal history, records concerning the offense for which pardon
is sought, his employment and residence history, and his reputation in
the community. The FBI report is reviewed by my staff to ascertain
whether favorable consideration of the case may be warranted. If the
investigation reveals derogatory information of a type that would
render pardon inappropriate and warrant denial of the request, my
office prepares a report to the President through the Deputy Attorney
General recommending such a result.
If the FBI report suggests that favorable treatment may be
warranted, or in cases which are of particular importance or in which
significant factual questions exist, the Office of the Pardon Attorney
requests input from the prosecuting authority (e.g., a United States
Attorney, a Division of the Department of Justice, or in some cases, an
Independent Counsel) and the sentencing judge concerning the merits of
the pardon request. If the individual case warrants, other government
agencies, such as the Internal Revenue Service or the Immigration and
Naturalization Service, may be contacted as well. In appropriate cases
in which the offense involved a victim, the prosecuting authority is
asked to notify the victim of the pendency of the clemency petition and
advise him that he may submit comments concerning the pardon request.
Upon receipt of the responses to these inquiries, my office prepares a
report and a proposed recommendation for action upon the case. The
report is drafted for the signature of the Deputy Attorney General and
is submitted for his review. If the Deputy Attorney General concurs
with my office's assessment, he signs the recommendation and returns
the report to my office for transmittal to the Counsel to the
President. If the Deputy Attorney General disagrees with the
disposition proposed by the Office of the Pardon Attorney, he may
direct the Pardon Attorney to modify the Department's recommendation.
After the recommendation is signed by the Deputy Attorney General, the
report is transmitted to the Counsel to the President for the
President's action on the pardon request whenever he deems it
appropriate.
Similarly, a federal inmate seeking a presidential commutation
(reduction) of his sentence files a petition for such relief with the
Office of the Pardon Attorney. In contrast to a pardon, a commutation
is not an act of forgiveness, but rather simply remits some portion of
the punishment being served. An inmate is eligible to apply for
commutation so long as he has reported to prison to begin serving his
sentence and is not concurrently challenging his conviction through an
appeal or other court proceeding. The petitioner is free to append to
the commutation application--or to submit separately at a later date--
any additional documentation he believes will provide support for his
request. In completing the petition, the inmate--or his attorney, if he
is represented by counsel--explains the circumstances underlying his
conviction; provides information regarding his sentence, his criminal
record, and any appeals or other court challenges he has filed
regarding the conviction for which he seeks commutation; and states the
grounds upon which he bases his request for relief.
When my office receives a commutation petition, we review it to
ensure that the applicant is eligible to apply for clemency, and we
commence an investigation of the merits of the request. The initial
investigative step involves contacting the warden of the petitioner's
correctional institution to obtain copies of the presentence report and
judgment of conviction for the petitioner's offense, as well as the
most recent prison progress report that has been prepared detailing his
adjustment to incarceration, including his participation in work,
educational, vocational, counseling, and financial responsibility
programs; his medical status; and his disciplinary history. We also
check automated legal databases for any court opinions relating to the
petitioner's conviction. In most cases, this information is sufficient
to enable my office to prepare a report to the President through the
Deputy Attorney General recommending that commutation be denied.
In a minority of cases, however, if our review of this information
raises questions of material fact or suggests that the commutation
application may have some merit, or because the case presents
significant issues, my office contacts the United States Attorney for
the federal district of conviction or the prosecuting section of the
Department of Justice for comments and recommendations regarding the
commutation request. We also contact the sentencing judge, either
through the United States Attorney or directly, to solicit the judge's
views and recommendation on the clemency application. As with pardon
requests, if the individual case warrants, other government agencies
may be contacted as well.
In appropriate cases in which the offense involved a victim, the
prosecuting authority is asked to notify the victim of the pendency of
the commutation petition and advise him that he may submit comments
concerning the clemency request.
Following an evaluation of all of the material gathered in the
course of the investigation, the Pardon Attorney's Office drafts a
report and recommendation for action on the merits of the commutation
request which is transmitted to the Deputy Attorney General. Following
his review, the Deputy Attorney General may either sign the report and
recommendation or return it to my office for revision. Once the Deputy
Attorney General determines that the report and recommendation
satisfactorily reflects his views on the merits of the clemency
request, he signs the document, which is then forwarded to the Counsel
to the President for consideration by the President. Thereafter, when
he deems it appropriate, the President acts on the commutation petition
and grants or denies clemency, as he sees fit.
When the President decides to grant clemency, whether in the form
of pardon or commutation of sentence, the Counsel to the President
informs the Office of the Pardon Attorney to prepare the appropriate
clemency warrant. Typically, if the President intends to pardon a
number of applicants, a master warrant of pardon will be prepared for
his signature. The signed warrant bears the seal of the Department of
Justice, lists the names of all of the individuals to whom the
President grants pardon, and directs the Pardon Attorney to prepare and
sign individual warrants of pardon reflecting President's action to be
delivered to each pardon recipient. The preparation of the individual
warrants by the Pardon Attorney is therefore a ministerial act which
simply sets forth the decision that the President has already made. The
individual warrant likewise bears the seal of the Department of Justice
and reflects that it has been prepared at the direction of the
President. When the individual pardon warrant has ' been prepared, it
is sent to the applicant, or his attorney if he is represented by
counsel, along with an acknowledgment form that the pardon recipient
completes and returns to the Pardon Attorney's Office to reflect
receipt of the warrant.
If the President decides to commute a prisoner's sentence, the
Pardon Attorney's Office likewise prepares the warrant of commutation
for the President's signature. Depending upon how many sentences are to
be commuted, either a master warrant detailing all of the commuted
sentences or individual commutation warrants may be prepared. After the
President has signed the commutation warrant, which bears the seal of
the Department of Justice, the Pardon Attorney's Office transmits a
certified copy of the document to the Bureau of Prisons to effect the
inmate's release. A copy of the warrant is also sent to the
petitioner's attorney if he is represented by counsel. Whenever the
President grants a pardon or commutation, the Pardon Attorney's Office
notifies the prosecuting authority (United States Attorney or Division
of the Justice Department), the sentencing judge, the relevant United
States Probation Office, the FBI, and any other government agencies
whose views were solicited, of the final decision in the matter.
When the President denies clemency, the Counsel to the President
typically notifies the Deputy Attorney General and the Pardon
Attorney's Office by memorandum that the affected cases have been
decided adversely. The Pardon Attorney's office then notifies the
pardon or commutation applicant, or his attorney, of the decision. In
addition, the Pardon Attorney's Office notifies the prosecuting
authority, the sentencing judge, other government agencies whose views
were solicited, and, in the case of a commutation, the Federal Bureau
of Prisons, of the outcome of the request. No reasons for the
President's action are given in the notice of denial.
With respect to the pardon of Marc Rich and Pincus Green, none of
the regular procedures were followed. The first time I learned that the
White House was considering these two persons for pardon was shortly
after midnight on the morning of Saturday, January 20, 2001. At that
time, I received a telephone call from the Office of the White House
Counsel advising me that they were faxing me a list of additional
persons to whom the President was considering granting pardons. When
the facsimile arrived, among the several names listed were Pincus Green
and Marc Rich. Since the fax included no other information about these
persons, I telephoned the White House Counsel's Office to advise that I
would need additional identifying data in order to request that the FBI
conduct criminal records checks on the named individuals. (I had been
contacting the FBI for the past several days with names of persons for
whom the White House wanted checks of criminal records and outstanding
warrants.)
I was told by White House Counsel staff that the only two people on
the list for whom I needed to obtain records checks were Marc Rich and
Pincus Green, and that it was expected there would be little
information about the two men because they had been ``living abroad''
for several years. I obtained the dates of birth and Social Security
numbers for Rich and Green from Counsel's Office and then passed this
information along to the FBI by telephone so that the records checks
could be completed. Shortly thereafter, White House Counsel's Office
personnel faxed to my office a few pages that appeared to have come
from a clemency petition that had been submitted to the White House on
behalf of Rich and Green by Jack Quinn, Esq. and other attorneys. The
information contained in these documents revealed that the pardon
request sought clemency for pending charges that had been brought by
indictment in the Southern District of New York some 17 years earlier,
and that Rich and Green had resided outside the United States ever
since and were considered to be fugitives. At that point, a member of
my staff began to conduct a quick Internet search for information about
the two men.
While that search was ongoing, I received a facsimile transmission
from the FBI of records which confirmed that Rich and Green were wanted
fugitives whom law enforcement authorities were willing to extradite
for a variety of felony charges, including mail and wire fraud, arms
trading, and tax evasion. Because I was concerned that the FBI
transmission would not be readable if it were itself faxed to the White
House Counsel's Office, I wrote a quick summary of the information
regarding the outstanding charges against Rich and Green and their
fugitive status and faxed that to Counsel's Office shortly before 1:00
a.m. on January 20th. Because of what we had learned about Rich and
Green, I also immediately contacted Deputy Attorney General Eric Holder
at home through the Justice Department Command Center to alert him that
the President was considering granting pardons to the two men. Mr.
Holder indicated to me at that time that he was aware of the pending
clemency requests by Rich and Green. After receiving my short summary
of the FBI's information about Rich and Green, personnel from the White
House Counsel's Office called to ask that I fax them a copy of the FBI
record itself. I did so shortly after 1:00 a.m., and also included the
limited information about Rich's fugitive status and the charges
against him that my staff had been able to obtain from the Internet.
The only other time the names of Marc Rich and Pincus Green had
come to my attention was on the morning of January 19, 2001, when I
first saw a copy of a letter dated January 10, 2001, that their
attorney, Jack Quinn, had sent to Deputy Attorney General Holder
seeking his support for pardons for the two men. The Justice Department
transmittal sheet attached to the letter indicated that on January 17
th, the Department's Executive Secretariat had assigned the
Quinn letter to my office for response and had sent a copy to the
Deputy Attorney General's Office for information. My office received
its copy on the afternoon of January 18 th, and on the
morning of the I9 th, I saw it in our mail. The due date for
response indicated by the Executive Secretariat was January 31
st. Because neither Rich nor Green had filed a clemency
application with my office and because the White House Counsel's Office
had never indicated to me that pardons for these two persons were under
consideration, I simply drafted a short response on the morning of the
19 th, to be held until the following Monday, advising Mr.
Quinn that neither man had submitted a pardon petition to my office and
that if they wished to request pardons, the application forms were
available upon request.
Mr. Chairman, I understand that the Committee is also interested in
hearing how the Department of Justice determined the scope of the
individual pardon grants made on January 20, 2001. A majority of the
persons named on the master pardon warrant had submitted petitions for
pardon to the Department of Justice. Their applications specified the
offenses for which they had been convicted and for which they sought
pardon. In many cases, we had sufficient time to fully process their
cases and submit reports and recommendations to the White House in
which we discussed those offenses. In these cases, it is clear that
President Clinton intended to grant pardons for the offenses so noted
and discussed.
Other persons named on the master warrant also submitted petitions
to the Department, but they arrived too late for us to submit a report
and recommendation. Many of these persons had also submitted their
petitions directly to the White House, and in some cases the White
House asked the Office of the Pardon Attorney for copies of their
petitions. In these cases as well, we are confident that President
Clinton intended to grant pardons for the offenses cited in their
petitions.
Some of the persons whose names were on the master pardon warrant
never submitted petitions to the Department. We have determined the
scope of the pardons for these persons in a variety of ways. In some
cases, including those of Marc Rich and Pincus Green, the White House
Counsel's office sent us, just prior to the granting of the pardons,
copies of or excerpts from the pardon requests that these persons or
their counsels had submitted to the White House. We therefore drafted
the individual pardon warrants to reflect the offenses for which the
pardon recipients were convicted (or, in the case of Rich and Green,
indicted) as described in these submissions made directly to the White
House.
In several other cases in which the Department received nothing
from the pardoned person, we were able to determine that the person had
been prosecuted by an Independent Counsel. In these instances, we
determined that the Independent Counsel conviction is the person's only
federal conviction. We therefore are confident that it was this
conviction that President Clinton intended to pardon, and drafted the
individual warrant accordingly. We obtained information as to dates of
conviction and exact offenses for which these persons were convicted
from the Internet web sites of several Independent Counsels, and in
some cases obtained court documents such as the judgment orders, which
give the date of conviction and the United States Code citation for the
offense of conviction.
In non-Independent Counsel cases in which we have received either
no documents at all or very sketchy information from the White House
Counsel in the last hours before the pardons were granted, we have
determined in all but one case that the person has only one federal
conviction. We are therefore confident that it was this single
conviction that President Clinton intended to pardon, and so drafted
the individual warrants accordingly. We obtained information as to the
date of conviction and the exact charges by contacting United States
Attorney's Offices and United States Probation Offices and requesting
the judgment orders in each case. We intend to prepare in this fashion
the remaining nine individual warrants that have not been completed as
of today. The delay in the processing of these warrants is occasioned
by the need of the U.S. Attorneys and Probation Officers to request the
official records from archived files stored at distant locations, and
is not due to any doubt as to the scope of the pardon intended by
President Clinton. We expect to complete this task shortly. In one case
(that of Adolph Schwimmer), the conviction of which we have knowledge
is more than 50 years old. The age of that conviction and Mr.
Schwimmer's own advanced age may prolong for awhile the process of
confirming that this is only conviction. In any event, we have no
knowledge or belief that President Clinton intended to pardon anyone
for conduct for which he or she was not at least charged and, in most
cases, convicted. Moreover, my office has had no contact of any sort
with President Clinton or any of his assistants since the master pardon
warrant was signed on January 20 th.
Senator Specter. Thank you very much, Mr. Adams.
Mr. Holder, if you could direct at least part of your
comments to the specific action you took after Mr. Adams called
you at 1 a.m. on January 20, 2001, we would appreciate it.
STATEMENT OF ERIC H. HOLDER, JR., FORMER DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Holder. What I would ask, Mr. Chairman, is instead of
making a statement, if I could have the statement that I made
before the House committee--I think this would be appropriate--
to have this made a part of the record here.
Senator Specter. It will be made a part of the record
without objection.
Senator Feinstein. Would you speak directly into the mike?
Thank you.
Mr. Holder. What I would like to do is really just touch on
a couple of points and then respond to any questions that
anybody might have.
First, I think one thing ought to be made clear. The Deputy
Attorney General, the Pardon Attorney of the Justice
Department, do not decide pardon requests. We make
recommendations to the President where the decision is
ultimately made. There have been times when we have made, I
have made recommendations to the President in favor of a pardon
request that was not granted. Conversely, there have been times
when I have recommended against pardon requests, and they have
been granted. In that list of 140 or so that were granted in
that last day of the Clinton administration, there are people
on that list that we recommended, I recommended against pardons
being granted.
I also would like to place some context, if I can, tell you
a little about that last day, that is, the 19th. I was
extremely busy that day, and particularly that night. We are
looking back now in the relative calm of this room, but on that
day, the last day of the administration, I was engaged in
personnel matters, death penalty issues, among them the
Chandler pardon request. We were dealing with Federal Register
matters, and something that took up a lot of my time were
specific security concerns we had about the inauguration the
next day.
We had specific information that gave us great concern
about the safety or the potential safety problems that we were
going to have with the incoming President. We were not
concerned about the ride from the White House to the
inauguration or the inauguration itself, but were very
concerned about the ride from the inaugural to the reviewing
stand.
At 12 o'clock on that day, which would have been at the
time of the inauguration, I was to become the Acting Attorney
General. Attorney General Reno would have stopped her
responsibilities at that point, and so I spent a lot of time
that evening focusing on that issue and the other issues that I
have talked about.
As I have indicated in my prepared remarks, there are
things I wish I could have done differently on that night, but
I want people to try to understand that this was not the only
thing on my plate on that evening, and it was not one of the
chief things that I had on my plate that evening.
In retrospect, what I think I could have done, what I
should have done that evening, was to check with the person on
my staff who was responsible for handling pardon matters to see
where we stood on the Rich matter. I assume that what had
happened--I assume, as I indicated in my remarks, that after
the pardon request would have been filed with the White House
that it would have been sent to the Justice Department for
review.
I also assume that staff contacts were going on between my
staff, perhaps the Pardon Attorney staff, and people in the
White House Counsel's Office. I did not think that from
November the 21st, when I guess I first heard about the
possibility of the pardon, until January the 19th that I was
the only person in the entire Justice Department who was aware
of this matter. In fact, I found out later on that there were,
in fact, conversations that occurred between my staff, White
House Counsel, and Mr. Adams about other matters, other New
York-related pardon matters, that I did not become aware of
until after--well, sometime after the 20th. I assumed that
those kinds of contacts, those kinds of discussions, were
ongoing.
With regard to the question that you asked, Senator
Specter, Mr. Adams did call me about 1 or so to tell me about
what had transpired in his interaction with the White House
Counsel's Office. I had known about that, I believe, from about
11 or 12. Again, as is indicated in my prepared remarks, the
person on my staff indicated to me that appearing on a list or
there had been some indication to her that the Green and Rich
names appeared on a list or it had been indicated to her that a
pardon--pardon applications for them were going to be granted,
or pardons were going to be granted for them.
By the time that I got that information, I thought that a
decision had been made, that the President had rendered a
decision, had made up his mind, had considered all the things
that he was going to consider, and so I took no action after
that point.
Beyond that, I would simply respond to any questions that
anybody might have.
[The prepared statement of Mr. Holder follows:]
Statement of Eric H. Holder, Jr., Former Deputy Attorney General,
Department of Justice, Washington, D.C.
Mr. Chairman, Senator Leahy, members of the Committee, I am happy
to have the opportunity to come before you today and to discuss the
Justice Department's role in the pardon of Marc Rich.
At the outset I want to emphasize one thing--the career people in
the Department worked very hard to process all of the pardon requests
that came to them in the waning days and hours of the Clinton
Administration. They are not to be faulted in this matter, As for my
own role, although I always acted consistent with my duties and
responsibilities as Deputy Attorney General, in hindsight I wish that I
had done some things differently with regard to the Marc Rich matter.
Specifically, I wish that I had insured that the Department of Justice
was more fully informed and involved in this pardon process.
Let me be very clear about one important fact--efforts to portray
me as intimately involved or overly interested in this matter are
simply at odds with the facts. In truth, because the Marc Rich case did
not stand out as one that was particularly meritorious, and because
there were a very large number of cases that crossed my desk that
similarly fit into this category, I never devoted a great deal of time
to this matter and it does not now stick in my memory. By contrast, I
did spend time monitoring cases, especially in those last days,
involving people who were requesting commutations of disproportionately
long drug sentences.
I would like to briefly go through a chronology of the relevant
events so as to explain the Department's involvement in this matter. I
think my first contact with the Rich case came in late 1999 when Jack
Quinn, the former White House counsel, called me and asked me to
facilitate a meeting with the prosecutors in the Southern District of
New York concerning a client of his named Marc Rich. This was not an
unusual request. Over the years other prominent members of the bar and
former colleagues, Republicans and Democrats, had asked me to arrange
similar meetings with other offices around the country. Mr. Rich's name
was unfamiliar to me. I believe that Mr. Quinn explained that he wanted
the U.S. Attorney's office to drop charges that had been lodged against
his client because of changes in the applicable law and Department
policy. I asked a senior career person on my staff to look into the
matter, and ultimately the prosecutors in the U.S. Attorney's office
declined to meet with Mr. Quinn, Neither I nor anyone on my staff ever
pressed the prosecutors to have the meeting. We simply deferred to them
because it was their case- In candor, if I were making the decision as
United States Attorney, I probably would have held the meeting. In my
view the government--and the cause of justice--often gains from hearing
about the flaws, real or imagined, cited by defense counsel in a
criminal case. But my only goal was to ensure that the request for a
meeting was fully considered. Consequently, I gained only a passing
familiarity with the underlying facts of the Rich case, and after the
prosecutors declined to meet with Mr. Quinn I had no reason to delve
further into this matter.
On November 21, 2000, members of my star and the United States
Marshals Service and I had a meeting with Mr. Quinn. Though it was one
of eight meetings I had on my schedule that day, I remember the meeting
because Mr. Quinn's client had a good idea about using the Internet to
help the Marshall's Service dispose of properties that had come into
its possession as a result of forfeiture actions. Mr. Quinn has
recently stated that after the meeting he told me he was going to file
a pardon request on behalf of Mr. Rich at the White House. I have no
memory of that conversation but do not question Mr. Quinn's assertion.
As comment would have been a 2
fairly unremarkable one given my belief that any pardon petition
filed with the White House would ultimately be sent to the Justice
Department for review and consideration.
Mr. Quinn has also recently stated that he sent a note to me about
the Rich case on January l0'''. I never received that note. The correct
address of the Justice Department does not appear on the
correspondence. The note ultimately surfaced on the desk of the Pardon
Attorney on January 18''', less than 48 hours before the pardon was
signed by the President.
On Friday, January 19' of this year, the last full day of the
Clinton Administration, when I was dealing with such issues as the
death penalty, pressing personnel matters and security issues related
to the next day's inauguration, I received a phone call from Mr. Quinn
at about 6:30 p.m. He told me that I would be getting a call from the
White House shortly, and he asked me what my position would be on the
pardon request for Mr. Rich. I told him that although I had no strong
opposition based on his recitation of the facts, law enforcement in New
York would strongly oppose it. Given Mr. Rich's fugitive status, it
seemed clear to me that the prosecutors involved would never support
the request. But I did not reflexively oppose it because I had
previously supported a successful pardon request for a fugitive,
Preston King, who, in the context of a selective service case, had been
discriminated against in the 1950s because of the color of his skin.
Shortly after my conversation with Mr. Quinn, I received a phone
call from the White House Counsel, Beth Nolan, asking me my position. I
am not sure if it was Ms. Nolan or Mr. Quinn who brought to my
attention that Prime Minister Barak had weighed in strongly on behalf
of the pardon request, but this assertion really struck me. With that
significant piece of new information I ultimately told Ms. Nolan that I
was now ``neutral, leaning towards favorable'' if there were foreign
policy benefits that would be reaped by granting the pardon.
Even after my conversation with Ms. Nolan on the evening of January
19 th, I did not think that the pardon request was likely to
be granted given Mr. Rich's fugitive status. I continued to believe
this until I actually heard that his name had been placed on a list of
pardons to be granted by the White House. I was informed of this list
around eleven o'clock, perhaps midnight, on the night of the 19
th. In retrospect, I now wish that I had placed as much
focus on the Rich case as I did on other pardons involving people such
as Derrick Curry, Dorothy Gaines and Kemba Smith, all of whom had
received extraordinarily long drug sentences which, I strongly believe,
were not commensurate with their conduct. Though I am speculating
somewhat, had I known of the reported meeting that night between the
President and counsel for Mr. Rich, I might have become more active in
this matter, even at that late date, sensing that there was a real
possibility the pardon request might be granted.
On the morning of Monday, January 22 nd of this year,
Mr. Quinn called me. I returned his call some four or five hours later.
He asked me what steps needed to be taken to ensure that his newly-
pardoned client was not detained by international law enforcement
authorities when he traveled. We talked about how he might get
detainers removed from computers and notify Interpol of the pardon, and
about similar things of a technical nature. At no time did I
congratulate Mr. Quinn about his efforts. If I said anything to him
about his having done a good job, it was merely a polite acknowledgment
of the obvious--that he had been surprisingly successful in obtaining a
pardon for this particular client,
As you can see from these facts, attempts to make the Justice
Department, or me, the ``fall guys'' in this matter are rather
transparent and simply not consistent with the facts. I, and others at
the Justice Department, had nothing to gain or lose by the decision in
this matter; we had no professional, personal, or financial
relationship with Mr. Rich or anyone connected to him; and, to the best
of my knowledge, none of us ever saw the Rich pardon application.
Indeed, it is now clear, and this is admittedly hindsight, that we at
the Justice Department--and more importantly, former President Clinton,
the American public, and the cause of justice--would have been better
served if this case had been handled through the normal channels.
I have now ended a twenty five year public service career. All that
I have from that time is the good work I think I have done, its impact
on people and, I hope, a reputation for integrity. I have been angry,
hurt and even somewhat disillusioned by what has transpired over the
past two weeks with regard to this pardon. But, I've tried to keep
foremost in my mind the meeting I had at my house with Derrick Curry
and his father the week after his sentence was commuted by President
Clinton, I know that my attention to that and similar cases made a
difference in the lives of truly deserving people. Of that I am proud
and grateful.
Senator Specter. Thank you, Mr. Holder.
Mr. Adams, you testified that when you talked to White
House Counsel about these two men, you were told that they were
``living abroad''?
Mr. Adams. That's correct, Senator.
Senator Specter. That is all? Nothing about their being
fugitives?
Mr. Adams. The word ``fugitive'' did not come to my mind
right then. The fact that the phrase ``living abroad'' caught
my attention, and I decided that even though they hadn't asked
for much, that I really wanted to do at least the limited FBI
record check that we could do, which was for outstanding
warrants and criminal history.
Senator Specter. But when you were told they were living
abroad, you were not told that they were under indictment?
Mr. Adams. No, sir, I was not.
Senator Specter. Or that they were fugitives?
Mr. Adams. First, I was not told they were fugitives. I
learned that from the FBI. I was told that they were under
indictment when the White House Counsel's Office, I think as I
testified, a few minutes after our initial conversation faxed
me a portion of the request for pardon that Mr. Quinn had filed
for these two men with the White House, and that indicated that
they were under indictment, a particular indictment in the
Southern District of New York dating from 1983.
Senator Specter. Mr. Adams, you testified that these
warrants were to be delivered to the individuals who were to be
pardoned?
Mr. Adams. That is correct.
Senator Specter. Was the document on executive grant of
clemency ever delivered to Mr. Marc Rich?
Mr. Adams. The individual pardon warrants of both Mr. Rich
and Mr. Green which I had been directed to prepare by President
Clinton's signing of the master warrant--it was delivered--at
least it was put in the mail; I don't think it has been
delivered now to their counsel, Mr. Quinn. It is a standard
procedure when a clemency applicant is represented by counsel
and the request is approved, we deliver the documents to the
person's counsel.
Senator Specter. Was there anything that you knew factually
from the President about Mr. Marc Rich besides the fact that
his name appeared on this master list?
Mr. Adams. Anything I knew from the President about Marc
Rich?
Senator Specter. Yes.
Mr. Adams. No, Senator. What I have testified to and what
is in my statement is the entire scope of my dealings with the
White House on it. The dealings were through counsel, through
the White House counsel.
Senator Specter. And, Mr. Adams, when was this document,
Executive Grant of Clemency, which recites--when was it
prepared?
Mr. Adams. Probably prepared some day last week. It was
prepared after January 20th.
Senator Specter. Well, the document recites on its face,
``In accordance with these instructions and authority, I have
signed my name and caused the seal of the Department of Justice
to be affixed hereto, and affirm that the action is the act of
the President being performed at his direction, done at the
city of Washington, District of Columbia, on January 20, 2001,
by direction of the President. Roger C. Adams, Pardon
Attorney.''
And you are saying that this recitation is inaccurate?
Mr. Adams. It is inaccurate in the sense that there was no
physical way we could sign--or I could prepare individual
warrants and sign them all on January 20. It has been customary
for many years that the individual warrants reflect the date of
the grant, as set out in the master pardon warrant. But it is
understood that we are not physically able to prepare or
deliver--
Senator Specter. Well, Mr. Adams, I can certainly
understand why you couldn't get them all completed, but I just
want to be emphatic or clear for the record that the recitation
that it was done on January 20, 2001, is not accurate.
Mr. Adams. It is true I did not sign it on January 20. That
is true, but it certainly reflected the action of the
President, then President Clinton, taken on January 20.
Senator Specter. Well, the action of President Clinton was
taken on the master executive grant.
There is another document which I know you are aware of,
Mr. Adams, which has the insignia of the Department of Justice
Pardon Attorney, stamped in January 20, 2001, memorandum to
Director of Office of Public Affairs from Roger C. Adams,
R.C.A., Pardon Attorney; subject: Marc Rich.
``On the above date, President Clinton granted Mr. Rich a
full and unconditioned pardon after completion of sentence,''
close quote, and it purports to bear your initials. Are those,
in fact, your initials?
Mr. Adams. Yes, they are, Senator.
Senator Specter. This may obviously be simply a mistake, or
it may reflect that it is customary for the President to
specify pardons, as many of these documents did. This is one of
many which contain a recitation. The language is ``a full and
unconditioned pardon on completion of sentence.''
What are the facts behind this memorandum, Mr. Adams?
Mr. Adams. OK. What you have in front of you, Senator, that
is a standard memorandum that my office prepares to the Office
of Public Affairs to notify the Public Affairs Office that a
pardon has been granted. The standard form recites that it is
for pardon after completion of sentence because that is the
situation with the vast, vast majority of pardons.
Senator Specter. Is there any suggestion at all that
President Clinton intended this pardon to apply after Mr. Rich
fulfilled his sentence?
Mr. Adams. I don't believe there is, Senator. What happened
was we prepared that document in my office about 2:30, 3 in the
morning, on the 20th. Unfortunately, we just didn't--we used
the standard boilerplate language which recites ``pardon after
completion of sentence.'' It was simply an error on our part,
you know, a direct result, I believe, of the fact that this was
a very unusual situation.
This request had come in very late. We were frankly tired.
We didn't catch it. We should have. It was a mistake in our
part. We should have not used that--
Senator Specter. Mr. Adams, pardon me for interrupting, but
my yellow light is on and I intend to observe the time, as all
Senators will.
This document, which is the executive grant of clemency for
Marc Rich, is the document which has to be delivered to him to
be effective, right?
Mr. Adams. It has to be signed. I am not sure it has to be
delivered to him.
Senator Specter. Well, you said that these documents were
delivered, but it has to be signed. Does the President of the
United States have any authority to act as President after noon
on January 20?
Mr. Adams. His term certainly ends on noon on January 20.
Senator Specter. Well, if he has no authority to act after
noon on January 20, does he have the authority to delegate any
authority to you?
Mr. Adams. Well, I think when he delegated the authority to
me, he was President. It seemed to me appropriate that we would
continue to carry out those instructions, particularly given
the fact situation here. It was obvious that there was no way
this many individual warrants could be completed by noon on the
20th. I was simply carrying--as a ministerial act, I was
carrying out the actions of--
Senator Specter. Well, that is a consequence of having it
done in the early morning hours of January 20. Well, the legal
consequences have to be determined, but I thank you for
providing the factual information.
My red light is on. We will turn to Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman. If I
might just be allowed an observation first, before I ask my
questions.
One of the things that I see increasing in this country is
the campaign that surrounds a pardon request. People who file
for a pardon or a commutation then get their families or
friends or their attorneys to really go out and organize a
campaign. A lot of well-meaning people get involved and they
put on a lot of pressure, and even more well-meaning people get
involved. I think Mr. Holder is one of them, for example, and
something like this can really ruin their entire career.
I think if there is a message from these hearings, it is
for to people who get involved in these pardon requests to
really know the facts before they get involved. I see this with
the Rich case, I see it with the Vignali case, I saw it with
the FALN case. There really is a constituency pressing on the
chief executive to deliver a pardon. And they really don't get
involved with the nature of the crime or the nature of the
sentence. Obtaining a pardon just becomes a kind of political
pressure point. In those cases, obviously the result was
successful, and it will probably take a number of good people
down with them, and I think that is really too bad.
Mr. Adams, let me ask this question. Section 1.6(b) of the
Rules Governing Petitions for Executive Clemency, which allows
crime victims to be notified of and heard regarding certain
clemency petitions, took effect on September 28 of the year
2000.
Mr. Adams. That is correct.
Senator Feinstein. I would be interested in an accounting
of how that section has operated for thess past 4 months. Let
me begin with this question: In how many cases did the Attorney
General attempt to notify the victim of a petition in the last
4 months?
Mr. Adams. I can't give a--the Attorney General did not
attempt to do it personally in any case. There were a number of
cases, eight or ten anyway, where there were victims and we
asked--the standard procedure, the way to ask is my office--if
the case is being seriously considered or if it is a case of
some moment that we want to do a very complete report on and
there are victims, we asked the United States attorney's office
to contact victims. I would estimate 8 or 10, not necessarily
in the last 4 months.
Senator Feinstein. Of the 140?
Mr. Adams. Yes. First of all, Senator, those regulations,
they only applied to petitions filed after that particular
date. But let me hasten to add that even before those
regulations went into effect, we routinely asked U.S.
attorneys' offices to contact victims in cases where there were
victims. Many of those 140 cases involved situations where
there were no victims, drug cases. Society is clearly a victim,
but that is not the type of case contemplated by those
regulations.
Senator Feinstein. Mr. Holder, do you agree with that that
in eight or ten cases the victim was notified by your
Department?
Mr. Holder. I simply don't know, Senator. Those are the
kinds of things that typically happen. The Pardon Attorney's
Office and perhaps people on my staff might be involved, but I
simply don't know.
Senator Feinstein. I think, Mr. Chairman, I would very much
appreciate in writing some indication of on how many occasions
was this section of the rules actually followed, if we might
submit that as a written question to them.
Senator Specter. Is that feasible to obtain, Mr. Adams?
Mr. Adams. Sure, we can give you--
Senator Specter. Well, then consider it a request.
Mr. Adams. We can give you a listing of cases in which we
contacted victims. I would request, though, that we not be
constrained to start on September 28 because we had been doing
that before the regulations went into effect.
Senator Feinstein. Well, since the rule went into effect, I
am just curious, has it been followed, and when it wasn't
followed, why not.
Mr. Adams. When there is a victim in the case and we are,
as the rule says, seriously considering the case, believe the
case might have some merit, or for other reasons--
Senator Feinstein. So you are prepared to say in every case
where there are existing victims, the rule has been followed?
Mr. Adams. No, I am not prepared to say that because there
are many cases, Senator, and this is an important point, where
there were victims, but we do not believe the case merits a
pardon or a commutation. We believe the case is of such lack of
merit that it is not even worth the time to go the United
States attorney's office to--
Senator Feinstein. Of those cases where there was merit--
for example, in the FALN case, no victim was contacted. That
was certainly a case that you probably thought perhaps didn't
have merit, but you are saying then you wouldn't contact the
victim?
Mr. Adams. Not necessarily. If I believed the case did not
have merit and I was going to do a summary denial of that--
propose the case be handled by way of summary denial, I would
not ask the U.S. attorney--first of all, I wouldn't ask the
U.S. attorney for his views anyway in most cases because it is
not worth getting them involved. It is a waste of their time.
It is also not worth going to victims in the vast majority of
cases where I believe routine, quick denial of the petition is
warranted.
Senator Feinstein. I want to speak just for a moment, if I
might, about a California case in which there was clearly a
campaign for a commutation. Carlos Vignali received a 15-year
sentence for his role in a drug operation that moved 800 pounds
of cocaine from California to Minnesota so it could be
converted to crack. He petitioned for commutation of his
sentence.
The relevant United States attorney in Minnesota strongly
opposed the petition, and Vignali's trial judge, whom the
Department of Justice did not consult, says that if asked, he
would have opposed the petition. The same judge supported a
couple of other requests for clemency. Ultimately, the
President commuted Mr. Vignali's sentence to time served, about
6 years.
Did you make a recommendation in this case?
Mr. Adams. Yes, we did, Senator.
Senator Feinstein. I take it I am not supposed to ask what
that recommendation is because of executive privilege, but you
did make a recommendation in that case?
Mr. Adams. Yes, Senator, we did.
Senator Feinstein. Could I ask one more quick question?
Senator Specter. Sure.
Senator Feinstein. Why didn't your staff contact the trial
judge in the case?
Mr. Adams. I am not prepared to discuss what we did in
specific cases and specifically with respect to the Vignali
case, but let me attempt to deal with your question more
generally.
When we go to the United States attorney's office for his
or her opinion in a case, be it a commutation case or a pardon
case, we routinely ask that that office contact the sentencing
judge on our behalf. And we tell them if they don't want to do
that, let us know and we will contact the sentencing judge.
We go to the U.S. attorney's office for a variety of
reasons. One, the case may appear to be meritorious or, two, we
just need more information from the U.S. attorney's office. The
pre-sentence report is incomplete. The petitioner has made
unusual claims that can only be answered by the United States
attorney or his staff.
In most cases, if we ask the U.S. attorney to contact the
sentencing judge, he does so. Once in a while, he doesn't. If
we believe that the situation is such that we have enough
information in my office to make our report and recommendation
without contacting the sentencing judge, we wouldn't.
Senator Feinstein. Thank you.
May I enter into the record the appellate brief in this
case, please?
Senator Specter. Absolutely, Senator Feinstein.
Senator Feinstein. Thank you very much. My time is up.
Senator Specter. And consider it a request from the
committee, Mr. Adams, that Senator Feinstein has made. If it is
administratively feasible, if you could list those which you
have not contacted victims where you conclude it is a matter
that is unmeritorious and unlikely to be pursued, that would be
fine.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Mr. Holder, I want to give you an opportunity to respond to
the written statement testimony from Jack Quinn. You have
touched on some of this already, but I want to specifically
deal with some of his comments.
This is from the testimony of Jack Quinn that has been
submitted: ``I personally notified Mr. Holder in his office on
November 21, 2000, that I would be sending a pardon application
directly to the White House. I told him then that I hoped to
encourage the White House to seek his views. He said I should
do so.''
Later on in the testimony he says, ``On December 11, 2000,
I delivered a two-inch-thick pardon application to the White
House, more than 5 weeks before the pardon was granted on
January 20. While the application was under consideration, I
wrote Mr. Holder on January 10, 2001, and asked him to weigh in
at the White House with his views.''
Later in the testimony it says, ``Still later, I called Mr.
Holder the night of January 19 and told him that Mr. Rich's
pardon was receiving serious consideration at the White House,
and that I understood he would be contacted before a decision
would be made at the White House.''
Could you comment on those?
Mr. Holder. Yes.
Senator DeWine. Walk us through the dates and tell us where
your recollection is the same as Mr. Quinn's and where it might
not be.
Mr. Holder. With regard to the November 21 notification, I
guess you might call it, from Mr. Quinn, I don't have any
recollection of that, but I don't doubt his assertion there
that he said that. We had a meeting in my office that day on
another matter, as I indicate in my statement. So I assume that
what he says is, in fact, accurate that he did tell me about
his intention to file something with the White House.
That would have been something that would not have been
awfully remarkable in my mind because I worked under the
assumption that anything filed with the White House would
ultimately find its way to the Justice Department. I had been
told that, in fact, something was filed on December 11, and
again I assume--that is, filed with the White House; I again
assume that is true.
Senator DeWine. But excuse me. Staying with the 21st, you
don't therefore recall saying anything to him, since you don't
recall the conversation?
Mr. Holder. No, but again I am not saying--I am saying I
don't recall it. I don't have any basis to dispute what he
says. I just don't recall the conversation.
The January 10th letter is something, I guess, that Mr.
Adams touched on in his opening statement. That is a letter
that I never saw. It apparently got into the Justice Department
mail system, was sent to the Pardon Attorney for a response.
There is an indication that it was sent to the Deputy Attorney
General's office, I think, for notification or something along
those lines, but I never actually saw that letter, the January
10th letter, which I think contained or attached a letter from
Mr. Quinn to the President on January 5th.
I did have a call with Mr. Quinn on January 19, in which he
indicated to me that I would probably be receiving a call from
the White House shortly thereafter. And I indicated to him, I
think, as I said in my written remarks, that based on his
recitation of the facts, I was not strongly opposed to the
pardon request.
But what I want to make clear is that at all times in my
interaction with this, this was not something that was for me a
priority matter because I didn't think this was something that
was likely to happen, given the fact that Mr. Rich was a
fugitive. In the time that I have been Deputy Attorney General,
I am aware of only one case in which a pardon request was
granted to a fugitive.
Senator DeWine. Let me make sure I understand the facts. So
you did know that he was a fugitive under the facts as recited
to you by Mr. Quinn?
Mr. Holder. Yes, I knew he was a fugitive.
Senator DeWine. You knew he was a fugitive, and still you
said you wouldn't necessarily have any objection to that?
Didn't the fact that he was a fugitive bother you?
Mr. Holder. Sure, it did, but assuming--again, what I said
to the White House counsel ultimately was that I was neutral on
this because I didn't have a factual--I didn't have a basis to
make a determination as to whether or not Mr. Quinn's
contentions were, in fact, accurate, whether or not there had
been a change in the law, a change in the applicable Justice
Department regulations, and whether or not that was something
that would justify the extraordinary grant of a pardon.
Senator DeWine. So the fact that he was a fugitive did not
take it out of the realm of possibility? You didn't say, well,
gee, he is a fugitive, therefore I wouldn't be in favor of
this. You came down neutral based on the facts as given to you
by Mr. Quinn. I just want to make sure I understand your
rationale here or your thought process.
Mr. Holder. Essentially, what I was trying to say--what I
tried to convey was that I didn't have a basis to make a
determination. Again, assuming that what Mr. Quinn said--I
didn't reflexively -I did not reflexively say that I was
opposed to this because he was a fugitive, having had that
experience with, I guess, Mr. Preston King, who was a fugitive
and who ultimately was granted a pardon that I supported. But I
did not think, given the fact that he was a fugitive, that this
was ever a matter likely to be successfully concluded from Mr.
Rich's perspective.
Senator DeWine. Thank you, Mr. Chairman.
Senator Specter. Thank you, Senator DeWine.
Senator Kohl?
Senator Kohl. Thank you, Senator Specter.
Mr. Adams and Mr. Holder, one of the questions this raises
which resonates across the country today is fairness, the
ability of the average citizen to have equal access to power
and to government, to redress, to have their grievances
considered. Of course, in theory, that is what America is all
about.
We all know that sometimes reality is not the same as
theory, but our job here, your job and our job, is to do
everything we can to bring that as close to possibility as we
can in this country. And there probably isn't one person across
this country today who is familiar with this case who doesn't
think that it is a question of power, connection, money, and
that, in fact, is how this pardon occurred. Without the power,
the connection, the money, there is no doubt that this pardon
would not have occurred. At least that is the perception across
the country.
Now, what is your response? You are part of the system. I
don't think you can just walk away from it, nor do I think you
want to. So what do you say to the people of our country who
are saying this stinks because if you are rich or powerful or
well-connected, you can get something done, and if you are not,
you can't get anything done? So the Government is not a
Government of the people, by the people, for the people.
Mr. Holder. Well, let me take a stab at--well, I am sorry,
Senator.
Senator Kohl. Mr. Holder, go ahead.
Mr. Holder. Just speaking on behalf of what happens in the
Justice Department, and certainly speaking specifically about
the work of Mr. Adams, his predecessors and the people who work
in the Pardon Attorney's office, I think the American people
should be reassured that they make their determinations and
recommendations based only on the information that is in front
of them. Big guys and little guys, I think, get treated equally
within the Pardon Attorney's office, and I am proud of the work
that they have done. I appointed Mr. Adams to be Pardon
Attorney. He is a capable guy and I think has done a very good
job.
Beyond that, it is hard to say what goes into the final
determination that any President makes in deciding whether or
not to grant a pardon, who the President listens to, what
influence a particular person might have. I think the thing
again that I am most familiar with is what happens within the
Justice Department aspect of the process, and I think there
people are treated the same.
Mr. Adams. I really can't add much to that, Senator. We
obviously -I hope it is obvious--we do treat everybody the
same. I am not at all interested in--
Senator Kohl. I guess I am not so much pointing a finger at
you because, as you have pointed out, there is a system in
place here and we know how the system works.
Are you prepared to say that in terms of fairness and
access, which all people should theoretically have the same, in
fact, in this case that didn't happen at all?
Mr. Holder. Again, it is hard to say. I don't know what
precisely motivated the President and whom he spoke to, what
were the things that were going through his mind as he decided
to look upon the pardon request favorably.
And it is true--I mean, I am not naive and I don't want to,
you know, give the American people a bill of goods. Connections
obviously help. I mean, there are--to be very honest with you,
we get requests or we get expressions of support from Members
of Congress for people who are perhaps better connected than
the average guy.
But I think what the folks in the Pardon Attorney's office
have done is a good job in really trying to separate that from
the substance and really ought to be the motivating things in
deciding what kinds of recommendations they are going to make.
But, yes, there is no question that certain people have an
ability to get more, quote, unquote, ``influential people'' to
weigh in on their behalf. I think that is true.
Senator Kohl. Would you say that in this case, being as
conspicuous as it has become, the American people to need to
know from whomever, however, what that justification for this
pardon was? Do you think that people at the highest level
should speak out and help to put this case to rest by
justifying the pardon?
Mr. Holder. Let me figure out a way that I can respond to
this question and de-dynamite it perhaps. I mean, I think that
certainly the American people, I guess, want to know ultimately
what happened here, and to the extent that that could be
explained, I think we would be the better off for it.
But, you know, the former President--no President, I think,
has an absolute duty to explain those kinds of decisions. It
seems to me that the Constitution, in making the power as
unfettered as it is, in some ways anticipates the notion that
you would want to have a President exercising that power
obviously responsibly, but without any kind of collateral
fears. I think that is probably the best answer I could give.
Senator Kohl. Mr. Adams, do you want to say something?
Mr. Adams. I think, Senator, what you are asking for is
sort of my--are you asking for my opinion of the whole--
Senator Kohl. Yes, of course.
Mr. Adams. Well, I mean I really have to--I do have an
opinion on what happened in this situation. But, you know, I
have to tell you, Senator, I am here as a representative of the
Justice Department and to give you facts and information that
came to my attention. And I just don't think it is appropriate
for me to express my personal--
Senator Kohl. What is your opinion? We are interested in
your opinion.
Mr. Adams. I just don't think it is appropriate for me to
give an opinion on that question of--the question you asked. I
just would prefer not to give a personal opinion, given the
position that I held then and hold now.
Senator Kohl. Well, why wouldn't you want to give us your
opinion?
Mr. Adams. Well, as I indicated, Senator--Mr. Holder has a
comment.
Mr. Holder. Senator, maybe if I could just interpose, I
mean Mr. Adams is a career Justice Department employee, and he
is a person who I am sure has called these things as he has
seen them. And regardless of what his personal opinion is, he
is a good lawyer, and good lawyers have to frequently do that,
put aside their personal opinions and make determinations based
only on the facts and the law.
I think I can understand how he feels uncomfortable. I was
a Justice Department lawyer myself, a trial lawyer, for 12
years. And I would ask, to the extent you would see it would be
appropriate, to not make him express a personal opinion, and to
the extent we can restrict the questioning of him to the way in
which he performed his official function. But it is only a
request, I think, that I would make actually on behalf of all
the career people within the Department.
Senator Kohl. Well, you are a Pardon Attorney in the
Justice Department.
Mr. Adams. That is correct.
Senator Kohl. So when pardons occur, Mr. Adams, you have an
interest in what happens. Forget about anything else. You are
an American, you care. You are an important person in the
process and you like to see pardons occur in an orderly way
just because that is a man taking pride in his job, and I would
sure that would describe you.
Mr. Adams. That is basically correct, sure.
Senator Kohl. And in this case, do you feel good about that
pardon?
Mr. Adams. All I can tell you, Senator, is that this case
was clearly not--this was a very unusual situation. The Rich
and Green case were not handled anything approaching the normal
way. I guess I have a parochial interest in seeing that they--I
would prefer that things be handled the normal way. But when a
President, for whatever reason, decides not to handle things in
an orderly -in a way in conformity with the regulations, there
is very little that I can do about it.
Senator Kohl. You may feel terrible about it, which you
obviously apparently do, but you are pointing out to us there
is nothing you can do as a matter of fact.
Mr. Adams. That is correct. If the President decides to not
follow the procedures, as is any President's right--in other
words, if he doesn't want input from the Justice Department, if
he doesn't want an investigation from my office, you know, I
can't force one down his throat.
Mr. Holder. One thing I would like to add, Senator, in
terms of the big guy/little guy thing and questions of
influence, a fair number of the pardons that were granted were,
I think as maybe Senator Feingold indicated, pardons of people
who were serving extremely long drug sentences. These were by
no stretch of the imagination people who were wealthy or
connected, and yet there were people who advocated on their
behalf.
And so as I said before, I think I have to concede that
certainly there are certain people who have an ability to get
people of influence to lobby on their behalfs. But the fact
that you don't have that does not necessarily mean that a
pardon request will be unsuccessful.
Senator Kohl. Thank you, thank you much.
Senator Specter. Thank you, Senator Kohl.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
Just for the record, Mr. Holder, about the time you became
the Acting Attorney General, a very close friend of my mine
said, is that a good idea, given the fact that Eric Holder was
the No. 2 person in the Clinton Department of Justice? I said,
yes, I think it is; I have had very professional dealings with
Eric Holder and I have no doubt that he will acquit himself
properly in that role.
And it is in that context that I am really disappointed in
the inaction that characterized your treatment of this matter
during the time that you were aware of it. I am speaking about
the Rich pardon primarily occurring on the 19th and the 20th of
January.
You excuse your failure to pay more attention to this
because you testified you assumed that Rich's fugitive status
would result in a denial. Is that correct? That is what you
just testified to.
Mr. Holder. Well, that among other things. I used that as
one of many things that caused my inaction in this pardon.
Senator Kyl. And yet that fugitive status and the other
factors were not sufficient to cause you to come down in
opposition to the pardon when you were specifically asked by
the White House, by Beth Nolan. In fact, you expressed
neutrality, even leaning favorable, notwithstanding your
knowledge that he was a fugitive and notwithstanding the fact
that you knew at that point that it had not gone through
regular Justice Department process.
Mr. Holder. Well, I mean again the leaning favorable aspect
of that recommendation was conditional, if there were a foreign
policy benefit that we would reap from the grant of the pardon.
I had been told that Prime Minister Barak had weighed in
heavily, or something along those lines, strongly in favor of
the pardon. And it was on that basis that I went from neutral,
which was a term that I mean to imply -I didn't have enough of
a factual background to decide the case one way--or to make a
recommendation one way or the other, but that if there were a
foreign policy benefit that might be reaped or that could be
reaped, I would lean favorably.
Senator Kyl. Those benefits would be outside of the purview
of your jurisdiction. Your jurisdiction pertained to the facts
relative to the alleged crime and the facts relative to the
fugitive status, conviction, if there is one, time served, and
so on. Is that correct?
Mr. Holder. Well, no. I mean, the Justice Department is not
a place that only deals with things within our borders. The
Attorney General and I met on a regular basis with the National
Security Advisor. We were involved in a great many foreign
policy discussions, as other departments in the executive
branch are.
Senator Kyl. With respect to possible solutions to prevent
this kind of issue arising in the future, wouldn't you agree
that confronted with the knowledge that this application had
not gone through regular Justice Department channels,
confronted with the knowledge that you knew very little about
it as a matter of fact, and that you assumed that the facts
were so negative that it wouldn't even be strongly considered
to be granted by the White House, then wouldn't you agree that
it would have been better for you to say, if you are telling me
there is an international factor, then that is something you
have to weigh, but you need to know that apparently there was
apparently a deliberate effort to avoid vetting this in the
proper way through regular channels in the Justice Department,
and that the President--to Beth Nolan now--the President should
be advised of that because he may be under the impression that
this has been properly vetted because of your communication
with me?
Mr. Holder. At the time, I didn't know that there had been
an effort or whatever to avoid the vetting. I assumed, in fact,
that there were conversations going on at a staff level about
this matter in the same way that staff-level conversations I
found out subsequently were going on about New York-related
cases.
Senator Kyl. Could I just interrupt you there, though? It
is a reasonable assumption that somebody would have told
someone, and yet it is now the last minute and this is just
before the administration is going out of office. You are being
asked for your recommendation and the usual procedure is for a
whole raft of documents to be submitted to you, a whole series
of recommendations from the Pardon Attorney, and so on, and you
are the one that makes the final recommendation, then, on this
matter.
And you had none of that, so you knew at that time anyway
that whatever conversations may have occurred within the
Justice Department that the proper procedures had not been
followed because you didn't have a recommendation from those
below you. You had no basis upon which to make a recommendation
to the White House, other than what Quinn might have told you.
Mr. Holder. Yes, and what I--my interaction with the White
House I did not view as a recommendation, because you are
right. I didn't have the ability to look at all the materials
that had been vetted through, the way we normally vet
materials.
And as I indicated in my written testimony, if there were
ways in which I would redo this, there were certain things I
would have done differently. And I think the one thing that
would have changed this whole thing, if I had said to the
person on my staff, what is the status of the Rich matter,
again assuming that there were these conversations that were
going on--if I had said that to her and found out from her that
there were no ongoing conversations, that I think would have
fundamentally changed the way in which the Justice Department
approached this case generally and how I approached the case
specifically. But I did not do that and I admit that.
Senator Kyl. You acknowledge that as a failure on your
part.
Just a last question. If Jack Quinn says that he took from
your conversation with him and your conversation with Beth
Nolan enough of a positive recommendation, or at least not a
negative reaction, to be able to argue to the President that he
had run it by Justice or run it by you, or words to that
general effect, creating the impression with the President that
you approved of it, would you disagree with that
characterization of Mr. Quinn?
Mr. Holder. Well, I think running it by Justice is actually
a pretty good description of what happened. Somebody at the
White House had to know that whatever I said was based on a
process that did not allow me to have the kinds of materials
that Mr. Adams normally gave me. I mean, somebody in the White
House had to know this.
Again, I don't know if it is inadvertence, design, or
whatever, but somebody had to know that any recommendation or
comment from Holder is not based on the kinds of materials that
he normally has access to. The White House never sent to us the
pardon application that had been filed with them.
As Mr. Adams indicated, his interaction with them was at 1
or 12, whatever it was, in the morning. So for people to think
that the Deputy Attorney General is speaking on behalf of the
Justice Department in the way that he normally does when it
comes to making pardon recommendations, given this record, I
don't think is supported by the facts. And there obviously had
to be people in the White House who knew that.
It might not have been the President. You know, it might
not have been the President, but at least somebody, it seems to
me, in the chain had to know that I didn't have in front of me
all the normal materials that I would have had in expressing a
recommendation.
Senator Kyl. Thank you, Mr. Chairman.
Senator Specter. Thank you very much, Senator Kyl.
Thank you very much, Mr. Holder and Mr. Adams. If you
gentlemen would step back but remain for the balance of the
hearing, we would appreciate it. There may be some follow-up
question we would like to ask.
I would like to combine the second and third panels because
we are running if late, if Mr. Quinn, Mr. Becker, Mr. Gormley
and Mr. Schroeder would step forward, please.
Welcome, gentlemen. Thank you very much for coming in. We
make it a practice to swear in fact witnesses, not expert
opinion witnesses, so we will proceed at this time.
Professor Benton Becker comes to this panel with a very
distinguished record. He is at the University of Miami now. He
has had important Government positions, including being counsel
to former President Gerald Ford at the time the pardon was
granted to President Nixon.
The clock will be set at 7 minutes for the witnesses and 5
minutes for the Senators.
Professor Becker, we will call on your first.
STATEMENTS OF BENTON BECKER, PROFESSOR OF CONSTITUTIONAL LAW,
UNIVERSITY OF MIAMI, PEMBROKE PINES, FLORIDA
Mr. Becker. Thank you, Mr. Chairman. I am pleased to have
this opportunity to appear before this committee to comment on
the language of the Constitution that provides at Article II,
section 2, that ``The President of the United States shall have
the power to grant reprieves and pardons for offenses against
the United States, except in cases of impeachment.'' That is
all that the text of the Constitution has to say on the subject
of pardons.
Twenty-7 years ago, in the early days of the Ford
administration, I was honored to undertake the task of
researching the historical precedents pertaining to
Presidential pardons, seeking to determine the constitutional
scope of Presidential pardons. Little constitutional change has
occurred in this Nation since 1974.
With a very narrow, limited exception, the Presidential
power to issue pardons is indeed absolute, and under almost all
circumstances not subject to review by the judicial branch. The
sole exception whereby a Presidential pardon may--and we have
never had that occur in our country--be the subject of judicial
review pertains to instances where a grant of a Presidential
pardon concurrently satisfies the elements of and the
evidentiary requirements of a Federal bribery or other Federal
acceptance of gratuity statutes.
I do not represent to this committee that that is the case
in the Rich and Green pardons. Such circumstances have been
most appreciatively non-existent in our country. But
approximately 20 years ago, in the State of Tennessee,
Tennessee successfully suffered through litigation disputing
the constitutionality of initiating criminal prosecution
against its then seated Governor in a criminal case, wherein it
was asserted that the Governor of the State of Tennessee
regularly engaged in the wholesale sale of pardons and
commutations.
I am advised that this committee is considering what
legislative enactments, if any, it might undertake to prohibit
or to deter future Presidents from issuing Presidential pardons
similar to those granted to Messrs. Rich and Green.
Initially, I would affirm that any constitutionally valid
legislative enactment that undertakes to restrict the
President's pardoning power under Article II, section 2, must
be enacted as a constitutional amendment. A legislative
enactment adopted by a majority of both Houses of Congress and
signed by the President restricting the Presidential pardoning
power in any manner would clearly be unconstitutional.
Therefore, Senators, any change in the law on the subject
of Presidential pardons must, by necessity, require a change in
the Constitution of the United States. I do not recommend
passage of a constitutional amendment on this subject. A
proposed constitutional amendment granting congressional or
senatorial approval or veto authority over Presidential pardons
is, in my view, unwise and unnecessary.
The Founding Fathers placed that absolute power, albeit
undemocratic power, in the Constitution, in recognition of the
fact that governmental adherence to the letter of the law does
not in all instances result in justice. And to hedge against
those instances of injustice a non-reviewable pardon power was
granted to the President. There is little doubt in my mind that
that power was not meant for people like Messrs. Rich and
Green, but that does not, in my view, justify tampering with or
cluttering our Constitution.
Mr. Chairman, I would simply ask that the remainder of my
statement be admitted into evidence.
Senator Specter. Without objection, your full statement
will be made part of the record.
Mr. Becker. Thank you, sir.
[The prepared statement of Mr. Becker follows:]
Statement of Benton Becker, Professor of Constitutional Law, University
of Miami, Pembroke Pines, Florida
I am pleased to have this opportunity to appear before the
Judiciary Committee of the US Senate to discuss Article II, Section 2
of the United States Constitution, which provides, ``President shall
have power to grant Reprieves and Pardons for offenses against the
United States except in cases of impeachment.'' That is all the text of
the Constitution has to say on the subject of pardons. Twenty-seven
years ago, in the early days of the Ford Administration, I undertook
the task of researching the historical precedents pertaining to
presidential pardons seeking to determine the constitutional scope of
the pardoning authority of Presidents. Little constitutional change has
occurred on this issue since 1974.
With a very narrow, limited exception, the presidential power to
issue pardons is absolute, and under almost all circumstances, not
subject to review by the judicial branch. The sole exception, whereby a
presidential pardon ``may'' (such exception, fortunately having never
occurred in history) be the subject of judicial review pertains to
instances whereby the grant of a presidential pardon concurrently
satisfies all elements of, and the evidentiary requirements for,
federal bribery or other criminal statutes. Should such occur, and I do
not represent that the Rich/Green pardons constitute such an instance,
only after a prudent determination that solid unimpeachable evidence of
criminal wrongdoing exists.
Such circumstances are, and have been, thankfully, almost non-
existing. Approximately twenty years ago, the State of Tennessee
successfully suffered through litigation disputing the
constitutionality of initiating criminal prosecution action against its
seated Governor in a criminal case wherein it was asserted that the
Governor of the State regularly engaged in the wholesale sale of
pardons and commutations. May our nation never be made to suffer
similar humiliation.
I am advised that the Senate Judiciary Committee is considering
what legislative enactment, if any, it might undertake to prohibit and/
or deter future Presidents from issuing presidential pardons similar to
those granted to fugitive financiers Marc Rich and Pincus Green.
Initially, I would affirm that any constitutionally valid legislative
enactment that undertakes to restrict the President's pardoning power
under Article 13, Section 2 must be enacted as a Constitutional
Amendment. A mere legislative enactment, adopted by a majority of both
houses of Congress and signed by the President restricting the
presidential pardoning power in any manner would be unconstitutional.
Therefore Senators, any change in the law on the subject of
presidential pardons must, by necessity, require a change in the
Constitution of the United States.
I do not recommend passage of a Constitutional Amendment on this
subject. A proposed Constitutional Amendment granting Congressional or
Senatorial approval or veto authority over presidential pardons is, in
my view, unwise and unnecessary. The Founding Fathers placed this
absolute power, albeit undemocratic power, in the Constitution in
recognition of the fact that governmental adherence to the letter of
the law does not, in all instances, result in justice. And, to hedge
against those instances of injustice, this non-reviewable pardon power
was granted to the President. There is little doubt in my mind that
this power was not meant for people like Misters Rich and Green, but
that does not justify tampering with. . . or cluttering, the
Constitution.
My experience with the presidential pardoning power dates back to
1974 and was at the time interwoven with the question of ownership and
possession of the records of the Nixon presidency. On August 9, 1974,
Richard Nixon departed the White House to San Clemente. He left behind,
in neatly packaged and sealed boxes stored on the forth floor of the
Executive Office Building, five and one-half years of accumulated
records, papers and tapes, including all tape recordings from the Oval
Office. At noon on August 9, 1974, Gerald R. Ford became President by
prearranged timing of the Nixon resignation. It was forcefully argued
by many in the White House staff that the newly sworn-in President was
only a custodian or bailee of the Nixon records, papers, and tapes left
behind in the White House. Within twenty-four hours after Mr. Nixon's
departure, President Ford's inherited Chief of Staff, Alexander Haig,
reported that the former President had landed successfully, had
unpacked his bags and had telephoned Haig demanding the immediate
transmittal of all ``his'' records, papers and tapes.
President Ford directed his Attorney General, William Saxbe, to
instruct the Department of Justice to prepare a legal opinion on the
subject of who, Richard Nixon or the US government, owned the records,
papers and tape recordings accumulated during the five and half years
of the Nixon administration. And furthermore, if ownership was
determined to have been
vested with the former President, what right, if any, did President
Ford have to refuse to transfer the records, papers and tapes to San
Clemente?
The Department of Justice's opinion presented to President Ford
within one week, concluded that primarily through custom and tradition,
and only partially through law, the records, papers and tape recordings
accumulated during the presidential term of the former president were
the exclusive personal property of the former President and that there
was no legal justification to refuse their transfer to the former
President. I could not then, and I have not in the succeeding twenty-
seven years, found either fault or error in the factual or legal
conclusions contained in the Justice Department opinion. Nonetheless,
Robert Hartmann's and my advice to President Ford was to ignore the
Justice Department opinion and to refuse the Nixon transmittal request.
My advice, rendered to a two-week occupant of the Oval Office, was to
disregard (indeed, to disobey) the law, and retain possession of the
records of the Nixon administration at all costs. President Ford sought
to create a device whereby the Nixon records could be held by the Ford
White House, in effect placed in a holding pattern, and thereby
providing an opportunity for the courts and the Congress to act.
Richard Nixon's subsequent execution of the Deed of Trust transferring
the records and tapes to the General Services Administration served as
that holding device for the Ford presidency.
President Ford, like the rest of the nation, had been given only
twenty-four hours for transition before assuming the presidency. It is
fair to note that virtually every Nixon White House staff person
inherited by President Ford urged President Ford to comply with the
Justice Department's recommendation to send all documents, papers, and
tapes to their ``rightful owner'' in San Clemente. Much was said in the
Oval Office at that time, some catchy and not so catchy. To his credit
and courage, President Ford ignored the advice of his own Justice
Department, his Chief of Staff and his newly inherited White House
Staff. He ordered that no records, papers and tapes be sent to San
Clemente.
I was asked by President Ford to research the scope of the
presidential pardoning power.
Several legal issues were obvious and easily discernible; other,
like land mines concealed in American jurisprudence, awaited an
opportunity to explode. Those issues included
1. Presidential authority to grant a pardon pre-conviction, and in the
case of Richard Nixon, a pardon pre-indictment. The precedents
were clear on this question both at common law and in our
judicial history. No constitutional prohibition prevented pre-
indictment pardons, in fact, they appear often in our history.
2. Presidential authority to grant pardon without specifically
delineating the precise federal criminal statutes for which the
recipient had been pardoned. If a person receives a pardon and
thereafter is prosecuted, the charged individual virtually
pleads the pardon at bar as a defense to the pending charge,
however, if a pardon defense is plead, it is incompetent under
the pleader to point with specificity to his or her pardoned
act and statutes. Failing such specificity of proof by the
accused, the defense will fail. Nonetheless, the precedents
were clear. An executive grant of a pardon does not require a
specific recitation of statutes or criminal acts. By my reading
of the news accounts of the large grouping of one hundred and
forty pardons in one document signed by President Clinton, I
read that some twenty-plus pardoned individuals (not Misters
Rich or Green) filed no pardon applications. . . causing the
validity of those pardons, in my mind, to be questionable. The
question is, absent a pardon application, or any other record,
what was the individual pardoned for?. . . and within what
period of time?
3. Whether a presidential pardon granted to Richard Nixon would, in
fact, accomplish its preventive prosecution purpose. The
reasoning, partly political and partly legal, was elementary;
what purpose would be served by pardoning Richard Nixon, if
thereafter the law allowed for the criminal prosecution of
Richard Nixon by sovereigns other than the United States? In
fact, that was precisely what the law allowed. The law of this
nation is that a pardon issued by the President protects
individuals from subsequent prosecution for the pardoned acts
only, and only in federal courts for federal crimes.
Simply stated, Richard Nixon's September 1974 pardon did not serve
as a bar against any subsequent prosecution against him that might have
commenced, and could have commenced in, for example California.
California could have elected to proceed, post-pardon, with a criminal
prosecution of Richard Nixon, alleging the former president conspired
with others to violate California's criminal burglary statute in the
matter of the Los Angeles break-in by the White House Plumbers of
Daniel Ellsberg's psychiatrist's office.
Even though one of the charged defendants in that would be
prosecution may have possessed a blanket presidential pardon, sovereign
states are sovereign, and precedent upon precedent allows subsequent
state prosecutions of individuals holding federal pardons. The
sovereign states of this Union are free to elect what consideration, if
any, their courts will afford to federal pardons. Many states provide
an informal degree of comity to recipients of federal pardons, but the
vast majority of states, including California, jealously refuse to
dilute their exclusivity and sovereignty of this issue.
Although each of these issues provided me with some significant
measure of sleeplessness at the time, with the passing of twenty seven
years, they have evolved to the exalted statues of academic discourse.
Some would argue that is where these issues have always belonged.
And that is, in my view, where the question of constitutionally
amending the pardoning process belongs. That process ought not be
politicized, through the inclusion of Congressional approval or veto
authority. It ought not be trivialized by mandatory preconditions
requiring the maintenance of specific types of memos and records. I
urge this Committee to trust history, and our presidential historians,
to judge the propriety of presidential grants of pardon; and to trust
the judgement and the good sense of the American people. I urge this
Committee to resist the momentary temptation to unnecessarily clutter
the Constitution.
Senator Specter. We will proceed with Professor Gormley at
this time, Professor of Law at Duquesne University School of
Law. He specializes in constitutional law, civil rights
litigation, First Amendment legal writing, and property, a very
extensive background, with a J.D. from Harvard Law School in
1980 and a B.A. from the University of Pittsburgh summa cum
laude.
We welcome you here, Professor Gormley, and look forward to
your testimony.
STATEMENT OF KEN GORMLEY, PROFESSOR OF CONSTITUTIONAL LAW,
DUQUESNE UNIVERSITY, PITTSBURGH, PENNSYLVANIA
Mr. Gormley. Thank you very much, Senator Specter. I
appreciate your invitation and the invitation of Senator Hatch
and the entire committee to be here.
I have a modest degree of expertise in the subject of
pardons. I am the author of the biography of Archibald Cox, the
Watergate special prosecutor, and, flowing from that, became
interested in the Ford pardon of Richard Nixon and organized a
program at Duquesne University in 1999 on the subject of the
pardon on the 25th anniversary.
After an admittedly short period of time to reflect and
research for today's hearing, I still have to say I find myself
hesitant when it comes to any constitutional revision of the
Presidential pardon power.
First, if you take a look at the large number of pardons
granted in our country's history, over 13,000 in the 20th
century alone, there are a surprisingly small number that have
come under attack as illegitimate. There are plenty of colorful
ones, some controversial, some allegedly designed to further
the political or personal interests of a President.
But I am not sure there are enough, or enough egregious
ones to justify an amendment, no matter how one constructs it.
Unless there is a clear track record of abuse or dysfunction, I
think, over many years and many administrations, I would be
inclined to err on the side of not upsetting the constitutional
apple cart.
As I understand it, one consideration at this time is an
amendment that would give Congress power to enact rules by
which the President or the Department of Justice would have to
adhere in dispensing pardons, and that would certainly prevent
the President from bypassing DOJ procedures, as arguably as we
just heard occurred in the case of several of President
Clinton's pardons, and indeed some other pardons in the past 30
years or so.
I worry, however, that that kind of a constitutional
amendment would do serious harm to separation of powers even if
it was limited to simply procedures, dealing with procedures by
which the President and Department of Justice were required to
process pardons, because it could still be used, in effect, I
think, Senators, to wrestle a core executive function away from
the President. We could discuss that in the question period if
you would like.
The most attractive alternative, at least on the surface,
would be the so-called Mondale amendment that you described,
Senator Specter, that was introduced shortly after President
Ford's pardon of Richard Nixon in 1974. Something like that
would certainly avoid the most serious constitutional concerns.
It would keep the pardon power lodged in the executive branch.
It would presumably limit Congress' involvement to extreme
cases. In many ways, it is similar to the Senate's power to
advise and consent with respect to Presidential appointments,
treaties, and so on.
But I still worry that the constitutional retooling in
order to accomplish even that, a benign amendment like the
Mondale amendment, would have unwanted consequences. I suppose
here I agree with Hamilton and Madison that the pardon power
uniquely is best reposed in one person, the head of the
executive branch. I fear that pardons by committee, which this
could become, would not be a good thing.
My greatest worry is that it would strip the President of
the pardon power during moments of passion, during moments of
crisis when he or she needed that pardon power the most.
President Ford's pardon of Richard Nixon, I think, is a great
example of that. As you remember, at the time President Ford
granted that pardon in 1974, the public reaction was outrage,
disapproving, and it didn't die down in a 100-day period
either. It may have well cost Gerald Ford the election in 1976.
Twenty-7 years later, however, the Ford decision to pardon
Nixon to bring finality to the Watergate crisis is viewed by
many scholars and citizens, including myself, as a good thing,
something that really did heal the country. Would the Ford
pardon have survived a Mondale amendment? I can certainly see a
scenario where it would not have because of the passions of the
time. I could see a two-thirds vote to overturn that.
On the plus side, a Mondale type amendment would allow us
to get at some of these, as I call them in my prepared
statement, bad pennies. It would turn up a few abuses, but it
would also create, I think, Senators, a powerful temptation for
Congress and for the American public to interject themselves in
the most lonely and difficult of the pardon decisions.
The wisdom of many pardon decisions, I think, as we are
going to see, is only judged with a period of time and
reflection. So allowing a legislation veto even with a high
two-thirds threshold might rob the President of his or her
ability to act with swiftness, definitiveness and courage in
the most difficult of circumstances. And the cost to the
Nation, it seems, might far exceed the benefit of rooting out
the occasional bad coin.
Those are my preliminary thoughts. I want to say that I
believe that hearings like this are extremely important. I
agree with your comments, Senator Specter and Senator Sessions,
that it is extremely important for us in a democratic republic
to have these things out in public and to put future Presidents
on notice that it is the best thing for all concerned to follow
the Department of Justice procedures and to do these things
according to certain procedures.
I welcome your questions and I thank you for the privilege
of testifying, Senator.
Senator Specter. Thank you very much, Professor Gormley.
[The prepared statement of Mr. Gormley follows:]
Statement of Ken Gormley, Professor of Constitutional Law, Duquesne
University, Pittsburgh, Pennsylvania
Good morning. My name is Ken Gormley. I am a Professor of
Constitutional Law at Duquesne University in Pittsburgh. I should begin
by saying, Senator Hatch, that it is a special honor to join you at
these Committee hearings. I formerly taught at the University of
Pittsburgh School of Law--your alma mater--where Dean W. Edward Sell
still brags about you as his best student in over a half century. I
greatly appreciate the invitation of yourself, my own Senator, Senator
Arlen Specter, as well as the entire Committee to appear here today. I
hope that I can offer some thoughts, however brief, that are of some
assistance. Specifically, I intend to discuss possible Constitutional
amendments to the existing Presidential pardon power contained in
Article II, Section 2, clause 1, and attempt to assess each.
I have a modest degree of expertise in the subject of Presidential
pardons. I am the author of ``ArchibaldCox: Conscience of a Nation,''
the biography of the first Watergate Special Prosecutor. In connection
with my work on that book, I had the privilege of interviewing
President Gerald R. Ford, and was struck by the passion with which he
defended his decision to pardon his predecessor, Richard M. Nixon. In
1999, I organized a program at Duquesne University entitled ``President
Ford's Pardon of Richard M. Nixon: A 25-Year Retrospective,'' broadcast
on C-SPAN television. This program brought together many of the key
figures in the Ford and Nixon Administrations, who directly
participated in the events culminating in the pardon of Richard Nixon.
Like many Americans, I once viewed the decision of President Ford to
grant that pardon as a bad one, at the time he made it in 1974. Yet
time and historical perspective led me to reassess that view. With the
benefit of 25 years' hindsight, I came firmly to the conclusion that
President Ford's controversial decision was ``the right thing for the
country'' (as President Ford told me at the Duquesne program),
regardless of what one felt about Richard Nixon's possible offenses.
I begin with this introduction only because my general reaction,
after an admittedly short period of reflection and research to get
prepared for today's hearing, is that this esteemed Committee (and the
Senate as a body) should proceed cautiously in this terrain. I do
believe that some possible amendments to the existing pardon power
might be more Constitutionally sound, and less disruptive to our
tripartite system of government, than others. Although I do not intend
to get into the merits of any of the specific pardons granted by
President Clinton at the end of his term--because I frankly do not know
enough about the facts to offer an intelligent assessment of them--I
hope that I can at least assist the Committee in discussing some of the
possible amendment concepts under consideration, and how these might
affect the Framers' broader Constitutional scheme.
My conclusion is that a proposal like the so-called Mondale
Amendment that was briefly considered in 1974, allowing a President's
pardon to be overridden by a two-thirds vote of both the House and
Senate, would be least offensive to our existing system of government
and the concomitant notion of separation of powers. However, I still
find myself leaning towards caution when it comes to any Constitutional
revision, since it will impact future Presidents for as long as our
democratic republic exists. Before investing the time and energy
necessary to guide a Constitutional amendment through Congress, and
thereafter obtain the requisite ratification of three-fourths of the
States, I believe that it is essential for this Committee to gauge not
only the potential benefits, but also the possible costs. Each time we
tinker with the original work-product of the Framers, we risk producing
unintended consequences. In this case, I am not convinced that the
benefits of tinkering--however sensible in one sense--warrant the
possible disruption of a system that works reasonably well.
As a starting point, without giving you a law school lecture, I
thought that a brief history of the Presidential pardon power might
make sense. This, in turn, will help shape an understanding of the
impact of several possible Constitutional amendments.
I. History of the Pardon Power
The literature on the pardon power is rather limited. The same is
true of the historical evidence of what the Framers had in mind when
they adopted this provision in the Convention of 1787. This much can be
said as a general sketch. The pardon power in England, which derived
from the Roman tradition, was extremely broad. As early as 7
th century A.D. there are records of Kings possessing such a
power. By 1535, the pardoning power was firmly lodged in the Crown.
Pursuant to English common law, the King had flexible powers to pardon
offenses either before or after indictment, conviction or sentencing.
He could grant full or partial pardons; he could make them conditional
or unconditional. The great legal commentator William Blackstone wrote
that the purpose of this sweeping power was to enable the sovereign to
show mercy in appropriate cases; to instill loyalty in his subjects;
and to advance the interests of the state. Admittedly, there were
abuses of the pardon power from the start--some Kings went so far as to
charge monetary fees to dispense absolution. Yet the practice became
entrenched, and took root in the American colonies from the time of
settling. Under the Virginia Charter of 1609, the Charter of New
England of 1620, as well as most colonial charters of the 17th century,
the Governor or Proprietor was authorized to pardon individuals for
criminal acts--although certain crimes like murder or treason were
often excepted.
My own state--Pennsylvania--was a fairly typical example. William
Penn, the Proprietor, was authorized to ``remit, release, pardon, and
abolish whether before judgment or after all Crimes and Offenses
whatsoever committed within the said Country against the said Laws,''
with an exception being made for ``Treason and willful and malicious
Murder.'' Only the King had the power to overrule Penn's decision as
Proprietor.
During the Constitutional Convention of 1787, the debate on the
Presidential pardon power was quite limited. Neither the original
Virginia Plan nor the New Jersey Plan contained a pardon provision. It
was Alexander Hamilton of New York, along with Charles Pickney and John
Rutledge of South Carolina, who successfully pressed for inclusion of a
Presidential pardon power at the Convention. The sparse historical
clues suggest that these draftsmen believed that the Chief Executive
should possess a pardon power in order to dispense mercy, in certain
instances, just as kings and governors had done. As Hamilton would
later write in Federalist No. 69, on March 14, 1788: ``In most of these
particulars the power of the President will resemble equally that of
the King of Great Britain and of the Governor of New York.''
Roger Sherman of Connecticut attempted to introduce a motion that
would require the ``consent of the Senate'' to validate Presidential
pardons. Sherman's motion was swiftly rejected. Members of the
Convention viewed it as transferring too much power to an already
powerful Senate. The Convention also rejected a proposed amendment,
offered by Edmund Randolph of Virginia, that would have excepted
``cases of treason'' from the pardon power. The Convention did,
however, agree to insert the words ``except in cases of impeachment"at
the end of the pardon language, the only real limitation on the
President's discretion. (This was probably influenced by the historical
clash in 17 th century England during which the Earl of
Danby, Thomas Osborne, was impeached by Parliament but pardoned by King
Charles II, spawning a lengthy constitutional crisis.)
James Iredell of North Carolina (later a Justice of the U.S.
Supreme Court), directly addressed the Constitutional Convention's
concern that the President might abuse the pardon power in order to
obscure his own guilt in criminal conduct. Iredell responded: ``Nobody
can contend upon any rational principles, that a power of pardoning
should not exist somewhere in every government, because it will often
happen in every county that men are obnoxious to a lawful conviction,
who yet are entitled, from some favorable circumstances in their case,
to a merciful interposition in their favor.'' He went on to declare:
``When a power is acknowledged to be necessary, it is a very dangerous
thing to prescribe limits to it. . . .'' In Iredell's view, the only
true restraint upon abuse of the pardon power by a President was the
risk of ``damnation of his fame to all future ages. . . .''
During the ratification process, the details of the pardon
provision were likewise subject to little discussion or debate. James
Iredell, now a member of the North Carolina ratifying convention,
argued that the pardon power should naturally be reposed in the branch
of government ``possessing the highest confidence of the people--the
executive branch.'' Alexander Hamilton, defending the pardon power in
Federalist No. 74, concluded that ``one man (the President) appears to
be a more eligible dispenser of the mercy of the government, than a
body of men.'' Hamilton went on to articulate, in Federalist 74 (March
25,1788), an oft-quoted justification for the Presidential pardon
power:
``[T]he principal argument for reposing the power of pardoning in.
. .the Chief Magistrate is this: in seasons of insurrection and
rebellion there are often critical moments when a well-timed offer of
pardon to the insurgents or rebels may restore the tranquility of the
commonwealth; and which. . .it may never be possible afterwards to
recall. The dilatory process of convening the legislature, or one of
its branches, for the purpose of obtaining its sanction to the measure,
would frequently be the occasion of letting slip the golden
opportunity.''
Hamilton further argued that a pardon power, vested in the Chief
Executive, would allow the President to foster humanity while
accomplishing sound public policy: ``Humanity and good policy conspire
to dictate, that the benign prerogative of pardoning should be as
little as possible fettered or embarrassed. The criminal code of every
country partakes so much of necessary severity, that without an easy
access to exceptions in favor of unfortunate guilt, justice would wear
a countenance too sanguinary or cruel. As the sense of responsibility
is always strongest in proportion as it is undivided, it may be
inferred that a single man would be most ready to attend to the force
of those motives, which might plead for a mitigation of the rigor of
the law, and least apt to yield to considerations, which were
calculated to shelter a fit object of its vengeance.''
It is safe to say that the pardon power has been used by Presidents
for a host of purposes, in the 214 years since its inclusion in the
Constitution. A review of some of the most noteworthy (and
controversial) pardons in American history reveals a colorful
assortment of Presidential absolutions. In the large number of pardons
granted in the nation's history--over 13,000 in the 20 th
century alone--there are a surprisingly small number that have come
under attack as illegitimate, at least with the benefit of historical
hindsight.
II. Noteworthy Pardons in American History
From the inception of the new nation, the Presidential pardon power
was exercised with regularity, often in controversial cases. President
George Washington issued a pardon, in 1795, to leaders of the Whiskey
Rebellion in Pennsylvania. President John Adams pardoned rebels
involved in Fries' Rebellion, and also used the pardon power to end the
Tariff Insurrection of 1800. President Thomas Jefferson pardoned
deserters from the Continental Army; he also pardoned a number of
Jeffersonian Republicans (his political supporters) who had been
convicted--under the Alien and Sedition Act--of treason for publishing
anti-Federalist political materials during the previous Federalist
Administration. President James Madison pardoned deserters, in order to
entice soldiers to fight the War of 1812. After the war, he pardoned
Jean Lafitte's pirates, who helped win the Battle of New Orleans.
President Andrew Jackson pardoned the Barataria pirates. President
James Buchanan exercised the pardon power to end a serious crisis in
Utah, excusing Mormon settlers who clashed with federal troops during
the forced removal of Brigham Young as Governor of the state.
(President Grover Cleveland later pardoned numerous Mormon settlers, to
shield them from prosecution for polygamy.) During the Civil War,
President Abraham Lincoln dispensed pardons generously to Confederate
sympathizers--in return for loyalty oaths--in an effort to undercut the
rebellion. After Lincoln's death, President Andrew Johnson granted
pardons by the thousands, including to leaders of the Confederacy, in
order to heal a divided nation. (His ``Christmas Proclamation of
1868,'' which absolved ``all persons guilty of treason and acts of
hostility,'' generated considerable anger within Congress.) Yet these
pardons remained viable, despite repeated attempts by Congress to limit
Johnson's power.
In more modern times, President Warren G. Harding speeded up the
commutation of Socialist Party leader Eugene Debs, so that Debs could
return home for Christmas. President Harry Truman granted amnesty to
select individuals who had violated the draft during World War II.
President Richard Nixon issued several controversial pardons, including
one to Teamsters President Jimmy Hoffa for jury tampering, on condition
that Hoffa stay out of union management. President Gerald Ford issued
the historic pardon to Richard M. Nixon. President Jimmy Carter granted
amnesty pardons in 1977 to those individuals who had avoided the draft
during the Vietnam War, as a means of healing deep internal wounds from
that conflict. President Ronald Reagan pardoned New York Yankees owner
George Steinbrenner for illegally funneling money into Nixon's 1972
Presidential campaign; he also commuted a foreign spy's life sentence
to seek the release of American citizens imprisoned abroad. President
George Bush pardoned oil tycoon Armand Hammer, convicted of making
unlawful contributions to the Nixon campaign during the Watergate
period. Bush also triggered a controversy when he absolved six alleged
participants in the IranContra scandal, including former Secretary of
Defense Caspar Weinberger, whom he believed had acted out of a sense of
patriotism. And President Bill Clinton has generated considerable
controversy with respect to several pardons, particularly (as this
Committee is well aware) his pardon of financier Marc Rich, a
commodities trader convicted in the early 1980's of conspiracy, tax
evasion, and racketeering, who had fled to Switzerland.
During the course of the 20 th century, Presidents
collectively exercised their power under Article II, section 2 to
pardon over 13,000 individuals, and to commute the sentences of
thousands more. (Only two Presidents, James Garfield--who was
assassinated after several months in office and William H. Harrison
never exercised the pardon power at all.) Franklin D. Roosevelt, who
held office for three terms, pardoned 2,721 individuals. Harry S.
Truman granted 1911 pardons. Dwight D. Eisenhower pardoned 1110. John
F. Kennedy pardoned 472. Lyndon B. Johnson issued 959 pardons. Richard
Nixon, in six years, pardoned 863. President Ford pardoned 381
individuals. Jimmy Carter pardoned 534. Ronald Reagan granted 393
pardons. George Bush issued 74. And Bill Clinton dispensed 396 pardons
during two terms in office.
III. Supreme Court Interpretation of Pardon Power
Consistently, the United States Supreme Court has interpreted the
President's pardon power in extremely broad terms. In United States v.
Wilson (1833), Chief Justice John Marshall defined the power like this:
``As this power has been exercised, from time immemorial, by the
executive of that nation whose language is our language, and to whose
judicial institutions ours bear a close resemblance; we adopt their
principles respecting the operation and effect of a pardon, and look
into their books for the rules prescribing the manner in which it is to
be used by the person who would avail himself of it.
``A pardon is an act of grace, proceeding from the power entrusted
with the execution of the laws which exempts the individual, on whom it
is bestowed, from the punishment the law inflicts for a crime he has
committed. It is the private, though official act of the executive
magistrate. . .''
Nearly a hundred years later, the Supreme Court shifted away from
viewing a pardon sheerly as an act of grace. Rather, the Court
suggested that it was a means of empowering the President to accomplish
swift, decisive good for the country, especially during situations
involving political upheavals or emergencies. As Justice Oliver Wendell
Holmes, Jr. wrote in Biddle v. Perovich (1915), the pardon was ``not a
private act of grace from an individual happening to possess power,''
but an act designed to further ``the public welfare.''
In the interests of furthering that welfare, the Supreme Court has
consistently backed up the President's pardon power, even when it has
collided with legislation, however well-intentioned. In two Civil War
era cases--Ex Parte Garland (1867) and Klein v. United States (1872)--
the Court concluded that the President's pardon power could not be
restricted by legislation. In Garland, the Court invalidated an act of
Congress that would have required lawyers admitted to the bar of the
United States courts to take a loyalty oath, because that law
indirectly clashed with the President's pardon power (the President had
already pardoned Garland for his involvement in the Civil War). In
Klein, the Court enforced a presidential pardon that allowed the
recipient to recover property, despite an Act of Congress that
attempted to cause such property to be forfeited. As the Court wrote in
Garland: ``The power of the President is not subject to legislative
control. Congress can neither limit the effect of his pardon, nor
exclude from its exercise any class of offenders. The benign
prerogative of mercy reposed cannot be fettered by any legislative
restrictions.''
This theme has been a constant one. In Ex Parte Grossman (1925),
Chief Justice Taft wrote that ``whoever is to make (the pardoning
power) useful must have full discretion to exercise it. Our
Constitution confers this discretion on the highest officer in the
nation in confidence that he will not abuse it.'' In the 1974 case of
Schick v. Reed, involving the commutation by President Eisenhower of a
military prisoner's death sentence, the Court reiterated the same
theme, stating that the pardon power ``cannot be modified, abridged, or
diminished by the Congress.''
In sum, few Presidential powers have been interpreted so broadly.
Any modification of the President's sweeping pardon power under Article
II, Section 2 would necessarily require an amendment to that provision.
IV. Possible Amendments
In considering possible adjustments to the current pardon
provision, it is first worthwhile to rule out certain approaches that
would create upheaval within our Constitutional system. Eliminating the
pardon power entirely, or shifting it to another branch of government
(the legislature or judiciary), would undermine the Presidency in ways
that the Framers of the Constitution certainly deemed unacceptable.
Pursuant to a long standing Anglo-American tradition, the pardon power
has historically been vested in the President (or King), to achieve
mercy in special cases, and to resolve crises by uniting the nation at
times when swift action is necessary. Abolishing this power would
amount to abolishing a piece of tradition rooted in centuries' worth of
American history, erasing the compelling arguments of Alexander
Hamilton in Federalist Nos. 69 and 74, that won the day during the
ratification process. Moreover, since the pardon power is itself a
``check'' on the powers of the legislative and judicial branches--when
it comes to criminal sanctions that may prove to be too stiff or
inflexible in particular instances--removing this power from the
executive branch would defeat its central purpose.
Likewise, a proposed Constitutional amendment giving Congress power
to enact a code of rules which the President (and/or the Department of
Justice) would be mandated to follow in dispensing pardons, would upend
the existing Constitutional framework. On its surface, such a plan
might have some appeal. It would permit Congress to bind a President to
standards akin to those Justice Department regulations presently
governing pardons, and thus prevent the President from bypassing
Department of Justice procedures, as arguably occurred in the case of
several of President Clinton's pardons. Yet such a Constitutional
amendment would in effect obliterate the separation of powers between
the executive and the legislative branches. The President, pursuant to
Article II, Section 1, stands as the Chief Executive. The power to
initiate, oversee, and terminate criminal prosecutions rests with the
President alone, along with his subordinates in the executive branch,
including the Attorney General. A Constitutional amendment authorizing
Congress to establish ground rules for the processing and granting of
pardons, would (in essence) wrestle a core executive function away from
the President.
This would create several potential problems, with respect to the
existing balance of power. A future Congress bent on thwarting the
President's pardon powers, for political or other reasons, could shrink
the parameters of his legitimate pardons (via legislation), making it
almost impossible for a Chief Executive to exercise that Constitutional
power. A future Congress bent on achieving the opposite goal, i.e.
allowing a proliferation of pardons to achieve certain political goals,
could tailor the legislation to permit--or even mandate--the President
to grant pardons in cases he found unpalatable or unworthy of clemency.
This option, therefore, leads to troublesome complications.
The most attractive alternative, at least on the surface, would be
one similar to the so-called Mondale Amendment, introduced in Congress
shortly after President Ford's controversial pardon of Richard M. Nixon
in 1974. That proposed amendment, offered during the 93 rd
Congress by Senator Walter Mondale of Minnesota, would have added the
following sentence to the existing pardon clause: ``No pardon granted
an individual by the President under section 2 of Article 11 shall be
effective if Congress by resolution, two-thirds of the members of each
House concurring therein, disapproves the granting of the pardon within
180 days of its issuance.''
Certainly, an amendment drafted in the image of the Mondale
Amendment would avoid the most serious Constitutional concerns raised
by other options. First, it would keep the pardon power lodged firmly
in the executive branch. Second, it would sidestep the problem of the
legislature meddling in the details of the pardon process; the
President alone (in conjunction with the Attorney General under his
command) would establish procedures for considering and granting
pardons. Third, the most worrisome threat to separation of powers would
be deflated. Rather than granting Congress a loose, far-reaching veto
power over Presidential pardons, such an amendment would presumably
limit Congress's involvement to extreme cases. Only where two-thirds of
the members of both chambers of Congress agreed that a pardon should
not have been granted could the President's decision be trumped. Given
this high hurdle, Congress's exercise of power in this realm would be
reserved for unusually egregious circumstances.
There is some surface appeal to such a proposed amendment, which is
not unlike the Senate's power under Article II, section 2, clause 2 to
advise and consent with respect to Presidential appointments, treaties,
etc. Yet my instincts nonetheless warn me against a hasty campaign to
adopt such an amendment.
At least two reasons trigger my sense of concern and caution.
First, I am not convinced that the relatively small number of
putatively-questionable pardons, in the 214-year history of our
Constitutional experiment, warrants tinkering with a system that
generally works. As a student and admirer of the Constitutional genius
that guided the Framers in devising the most durable charter known to
human-kind, my instincts warn me--as a general rule--to disfavor
Constitutional amendments except where absolutely necessary. Unless
there exists a clear track record of abuse or dysfunction, over a
period of many years and many Administrations, I would be inclined to
err on the side of leaving the Constitutional applecart undisturbed.
Second, and perhaps most importantly, I worry that a Constitutional
amendment--even one as benign as the Mondale Amendment--might produce
unintended consequences, defeating the laudable purposes for which the
pardon power was created in our Anglo-American system of laws.
Alexander Hamilton was correct, I believe, when he stated that the
pardon power is best left in the hands of a single official, who heads
the Executive Branch. (This point was also made by James Madison in
Federalist No. 74.) Granting pardons by committee would turn into an
unwieldy, messy political process. Even worse, it might strip the
President of the pardon power during moments of stress and crisis when
he or she most needs to exercise that power.
President Ford's pardon of Richard M. Nixon provides a useful
example. At the time President Ford issued this controversial pardon on
September 8, 1974, the nation was weary from Watergate. Many citizens
were shocked when Ford appeared unexpectedly on television, on a serene
Sunday morning, and absolved Mr. Nixon of all potential federal crimes
committed during his second term in office. Large segments of the
American citizenry were outraged that the former President would escape
prosecution for his participation in the Watergate coverup, especially
after digesting the recently-released transcripts of the Watergate
tapes. The public reaction to Ford's exercise of the pardon power was
loud, angry and disapproving. It may well have cost Gerald Ford the
election of 1976.
Yet twenty-seven years later, Ford's decision to pardon Nixon, to
bring finality to Watergate, is largely viewed by scholars and public
figures and citizens alike as an act of courage that proved beneficial
to the nation. It provided the nation ``A Time to Heal,'' as President
Ford suggested in the title of his own autobiography. It gave the
President a swift and decisive way to end the national obsession with
Watergate, and move on to conducting the business of the nation.
Would the Ford pardon of Richard M. Nixon have survived a
Constitutional provision like the Mondale Amendment? The answer, of
course, is a matter of historical speculation. Yet it is not difficult
to imagine a scenario in which two-thirds of the Congress would have
voted to overturn Ford's unpopular and controversial decision. Some
Representatives and Senators would have undoubtedly voted along strict
party lines to invalidate the pardon. Others, even if sympathetic to
the newly-installed President Ford, might have succumbed to public
pressure and voted to overturn the Presidential action in order to
``save face'' with their constituents.
In the end, a provision like the Mondale Amendment would allow the
public itself to exert considerable influence upon the viability
Presidential pardons, during times of high emotions and passion. These
are precisely the times, however, when public influence is most
dangerous. It cannot be denied that certain ``bad pennies'' will
inevitably sneak into the mix, if the Presidential pardon power remains
strong, as it currently exists in the Constitution. Jefferson was
suspected of favoring his Anti-Federalist supporters with the
Presidential pardon power. Lincoln was accused of granting a
disproportionally large number of pardons to friends from Kentucky.
(``Pardon brokers'' purported to have influence with pardoning
authorities in Washington, during this period, and extracted lucrative
fees.) President Bush came under fire for pardoning various Iran-Contra
defendants; Independent Counsel Lawrence Walsh and others charged that
Bush was protecting himself from legal difficulties and embarrassment
that would flow from having to testify at the defendants' trials.
President Clinton, since leaving office, has been roundly criticized
for pardoning fugitive financier Marc Rich, presumably in return for
some direct or indirect quid pro quo.
The Mondale Amendment would allow Congress to sift through the pile
of Presidential pardons during each Administration and extricate any
bad pennies. In one sense, then, it would be productive; it would
certainly turn up a small number of abuses. It is beyond dispute that
some pardons have been premised upon political and personal gain.
My worry, however, is that a Mondale-like amendment would
simultaneously create an irresistible temptation for Congress and the
American public to interject themselves into the most controversial and
lonely pardon decisions that face a President--such as those confronted
by Gerald R. Ford (during Watergate) or Abraham Lincoln and Andrew
Johnson (during the Civil War) or James Buchanan (during the clash
between federal troops and Mormon settlers in Utah) or George
Washington (during the Whiskey Rebellion). In such cases,
contemporaneous judgment is far less useful than historical
perspective. The wisdom of the most controversial pardons in American
history, it seems, cannot be judged on the spot. Allowing a legislative
veto, even with a high twothirds threshold, might rob the President of
his ability to act with swiftness and definitiveness and courage in the
most difficult circumstances. The cost to the nation, it seems, might
far exceed the benefit of rooting out the occasional bad coin.
It must be remembered, moreover, that the Presidential pardon
power--even as currently constructed in the Constitution--is not an
unlimited one. There are a number of built-in restraints on the power,
which (at least to a certain extent) soften the potential damage that
can occur due to an occasional bad decision. First, the pardon power
applies only to federal crimes; state crimes (which typically exist
hand-in-hand with federal offenses) can still be prosecuted. Second,
the pardon power eliminates only criminal punishment; civil liability--
which can pose a substantial problem for a pardon recipient--remains
undisturbed. Third, the pardon power does not apply to cases of
impeachment. Fourth, since pardons do not necessarily occur at the end
of a President's term (many are granted in mid-term), a President could
still be impeached and removed from office for certain gross abuses of
the power.
Finally, even if this Committee were to recommend to the full
Senate the adoption of a Constitutional amendment similar to the
Mondale Amendment, I would strongly recommend at least two
modifications. First, the proposed 180-day period during which Congress
is permitted to act seems far to long. One of the crucial features of
the pardon power, historically, has been to permit the Chief Executive
to act swiftly, decisively and with finality to bring an end to crises
that threaten the well-being of the entire nation. A period of 60 days
or 90 days seems more than adequate to allow Congress to methodically
examine the President's pardons and determine if there are any of
questionable merit. Only extreme cases would warrant the exercise of
the legislative veto power, in any event, under a provision like the
Mondale Amendment. In moments of crisis and delicate negotiation, the
value of a well-timed pardon would be rendered hollow, if it hung in
limbo conditioned upon a long Congressional approval process.
Second, if the Senate were to amend the existing pardon language of
Article 11, section 2, it would make good sense to take the opportunity
to make clear that the President cannot pardon himself or herself. Both
during the Iran-Contra matter, and more recently during the Monica
Lewinsky scandal that plagued the Clinton Administration, much
speculation and scholarly debate centered upon the question whether the
President could Constitutionally pardon himself. The general consensus
was that: A) this seemed implicitly inappropriate and impermissible,
but B) nothing in the Constitution or its history expressly forbade it.
Although I have not advocated, in my testimony today, that a
Constitutional amendment of any sort is the best course, if this Senate
were to choose to move forward with a Mondale-type amendment, or any
other change in the language of Article II, Section 2, it would make
good sense to clear up this ambiguity and make explicit that a
President cannot pardon himself or herself.
Conclusion
The great bulk of Presidential pardons, over the 214-year history
of the Constitution, have been dispensed with an appropriate level of
caution, leading to only rare assertions of abuse. It is true that
controversies inevitably erupt with respect to certain politically-
charged pardons. Yet the passage of time often softens the light in
which they are viewed.
Absent a consistent pattern of Presidential misuse, my strong
instinct is to leave the power undisturbed. Although a Mondale-type
amendment has some merit, it also has some drawbacks. The most
difficult, lonely pardon decisions might be compromised by the
injection of Congressional and public input. Controversial pardon
decisions might easily be overturned due to high emotions and political
passions, during moments in American history when such influences are
the most dangerous. In the end, although the existing system is not
perfect, it seems best to leave pardon decisions to one man or woman
occupying the White House, with a strong presumption that they will be
dispensed legitimately.
This is not to say that the recent controversy, involving the
pardon of Marc Rich by President Clinton, has not served a valuable
purpose. It remains a stark reminder to future Presidents that it is in
the best interest of all concerned to scrupulously adhere to Justice
Department procedures, and avoid the sort of controversy that has
triggered today's hearings. So long as a President acts in conjunction
with a careful Justice Department, and a vigilant Pardon Attorney, the
number of mistakes and ``bad pennies'' will be kept to a minimum.
James Madison argued in Federalist No. 74 that the pardon power
should be lodged in a single individual--the Chief Executive--and that
in the long run this would be a safe repository. ``The reflection that
the fate of a fellow creature depended on his sole fiat,'' Madison
wrote, ``would naturally inspire scrupulousness and caution; the dread
of being accused of weakness or connivance, would beget equal
circumspection, though of a different kind.''
As James Iredell (later Justice Iredell) stated during the
Constitutional ratification process, the President who abused this
sacred power would face the most serious risk of all--``damnation of
his fame to all future ages. . . .''
Thank you for the privilege of testifying before this Committee
today, on a matter of such great Constitutional importance.
Senator Specter. We now turn to Professor Christopher
Schroeder, a doctor of law from the University of California, a
master of divinity from Yale, a bachelor's degree from
Princeton in 1968. Professor Schroeder is the Director of
Programs and Public Law, and Co-Chair of the Center for the
Study of Congress at Duke University.
Thank you for joining us, Professor Schroeder, and we look
forward to your testimony.
STATEMENT OF CHRISTOPHER H. SCHROEDER, PROFESSOR OF LAW AND
PUBLIC POLICY STUDIES, DUKE UNIVERSITY, DURHAM, NORTH CAROLINA
Mr. Schroeder. Thank you, Mr. Chairman and members of the
committee, and thank you for the opportunity to be here today.
I have submitted written testimony which largely whistles
the same tune as my two preceding colleagues. This may be a
rare moment in which you have three academics here who largely
agree with one another. Rather than summarize that testimony,
let me just make three preliminary remarks about the nature of
the pardon power and why I concur that at this time amending
the Constitution to change it in some way would be unwise.
If you look at the power in the text, three aspects of it
jump out at you immediately. It is very broad; it applies to
every Federal offense except impeachment. There are no
standards and it is unreviewable. You look at a power like that
and one of your immediate reactions is, ouch, this is a power
that can be abused. That is right; it can be.
Then you go back and you look at the Philadelphia
convention records and the ratifying convention records and the
debates surrounding the ratification of the Constitution and
you see, lo and behold, the founding generation was perfectly
aware of all three of these characteristics. They well
understood that an unreviewable power was subject to abuse.
They well understood that they were making it unreviewable.
They debated a suggestion to involve the Senate in the process
at the Philadelphia convention and decided not to adopt it.
In the end, what persuaded them to loose such a rogue and
vagrant power and house in the office of the President? Well,
fundamentally, two things: one, a felt incapacity to identify
in advance all the circumstances under which a pardon of some
kind or an act of clemency might be warranted either in the
national interest or in the interests of justice or in the
interests of mercy, and, second, a sense that on some
occasions, again impossible to identify in advance, some
element of dispatch might be necessary.
The examples they used are probably not applicable any
longer. The idea that a pardon given to a participant in a
treason conspiracy before he or she had been tried might enable
us to honor the other accomplices and suppress the treasonous
plot in an expeditious manner may not be applicable today. But
that is still a value that would be lost with the
recommendation to subject a pardon to a 180-day review, and you
can think of circumstances even today where that might matter.
It would have mattered, I think, in the Preston King case
where, in the interests of humanitarian concerns, that pardon
was granted when it was in significant part in order to allow
Mr. King to come to the country in a timely manner to attend
his brother's funeral.
You can imagine circumstances that we hope will never arise
in which we do have some difficulties with some foreign power
and we have the potential of getting information from a spy,
say, and we haven't tried him or her yet. Yet, it is felt in
the interests of the Nation that we might be able to extract
that information in return for a conditional pardon. Well, how
often will those circumstances occur? Who knows? It really is
impossible to say.
I have got two background principles with which I approach
any question of amending the Constitution, though, that also
for me tilt the scale further in the direction of inaction at
this time.
One, Mr. Chairman, you have mentioned, that we ought to be
very careful before we amend the Constitution. It has only been
done, as others have noted, 17 times since the first Congress.
The stability of that document is one of the virtues of it and
one of our National assets, and we just ought to be very
careful before we do it.
The corollary to that to me is we ought to make sure before
we amend the Constitution that we have exhausted non-
constitutional means to at least round off some of the rough
edges that we might see in a situation. It might not be a
perfect substitute for an amendment, but there are some
legislative proposals, such as some version of S. 2402 that was
introduced and voted on in committee in the last Congress, that
would add some more transparency to the process.
I think there may be some other ideas, some of which I
mention in my testimony, that the Congress could
constitutionally take that would fall short of amending the
document. Any kind or review provision is inevitably going to
be most successful in grabbing and preventing unpopular
pardons, perhaps with the two-thirds provision only high
unpopular pardons.
But the difficulty is, as Professor Gormley has noted, in
our history there have been good unpopular pardons and there
have been bad unpopular pardons. It is just that we can't tell
them at the time. We are consumed by a passionate moment, as in
the case of the Nixon pardon. I think, in retrospect, that one
has borne up fairly well.
I was also myself personally -I will express a personal
opinion--opposed to President Bush's pardon of Defense
Secretary Weinberger and the other five, and I have come to
look a lot more kindly on that pardon as time has gone on and
as I have come to understand in more detail the way the
independent counsel statute works, among other things. So that
is the cost you pay.
The question, then, for you is whether the cost is worth it
for the benefit you would gain in preventing a future Marc
Rich. I think that the prospects of this kind of event, a last-
hour pardon that has a lot of questionable features to it, is
one that is relatively, if not highly unlikely to occur in the
future. I say that not wanting myself to express any definitive
opinion about the Rich pardon because I don't yet know all the
facts either. There is certainly a lot of interest in learning
more of those facts.
Those are my considerations and why in my written remarks I
recommend against a constitutional amendment. I look forward to
answering any questions you may have.
Senator Specter. Thank you very much, Professor Schroeder.
[The prepared statement of Mr. Schroeder follows:]
Statement of Christopher H. Schroeder, Professor of Law and Public
Policy Studies, Duke University
Mr. Chairman, Senator Leahy and members of the Committee. My name
is Christopher H. Schroeder. I am a professor of law and public policy
studies at Duke University. During the Clinton Administration, I worked
for some time in the Office of Legal Counsel at the Department of
Justice, including a period as the acting head of that office. As you
know, one of the important functions of that office is analyzing and
preserving the legitimate scope of the President's constitutional
powers, including those of chief executive officer of the United
States. Since returning to teaching, issues of executive power and the
relationship between the Congress and the President have been among my
areas of research and scholarship.
I thank you for the invitation to discuss with you proposals to
amend the President's power to grant reprieves and pardons. I will not
be commenting upon the justifications for any of President Clinton's
late-term acts of clemency, but will confine my remarks to inquiring
into whether or not amending the President's pardon power is warranted
at this time. In particular, I will discuss my reservations concerning
proposals for a Constitutional amendment subjecting Presidential
pardons to Congressional disapproval by a two-thirds vote of both
chambers taken with 180 days of the pardon. While reasonable minds may
disagree, I respectfully submit that going forward with such a proposal
is both unjustified at this time and unwise from the perspective of
preserving the strengths of the current Constitutional system.
The President's Broad Power of Reprieves and Pardons
The Constitution vests in the President ``Power to grant Reprieves
and Pardons for Offenses against the United States, except in Cases of
Impeachment.'' Art. II, Sec. 2.
As Presidents have exercised this power throughout the nation's
history, three features of that power have often elicited comment.
First, the power is very broad in scope. Second, the power is vested
exclusively in the President, and cannot be ``modified, abridged or
diminished by the Congress.'' Schick v. Reed, 419 U.S. 256, 266 (1974).
Third, Presidents have used the pardon power for a wide variety of
purposes.
The Supreme Court has repeatedly recognized the broad scope of the
pardon power. For example, in Ex Parte Garland, the Supreme Court
summarized the reach of a presidential pardon as follows:
The power thus conferred is unlimited, with the exception [in cases
of impeachment]. It extends to every offence known to law, and may be
exercised at any time after its commission . . .[W]hen the pardon is
full, it releases the punishment and blots out of existence the guilt,
so that in the eye of the law the offender is as innocent as if he had
never committed the offence. If granted before conviction, it prevents
. . . the penalties and disabilities consequent upon conviction from
attaching; if granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it makes him,
as it were, a new man, and gives him a new credit and capacity. Ex
Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866). In addition to the
full power of pardon, the power to grant ``reprieves and pardons''
encompasses all forms of clemency, including pardon, amnesty,
commutation, remission of fines, and reprieve. See Daniel Kobil, ``The
Quality of Mercy Strained: Wresting the Pardoning Power from the
King,'' 69 Tex. L. Rev. 569, 575-78 (1991) (collecting authorities).
Second, the President's power is also not subject to restriction or
limitation by the Congress. To quote again from Ex Parte Garland: This
power of the President is not subject to legislative control. Congress
can neither limit the effect of his pardon, nor exclude from its
exercise any class of offenders. The benign prerogative of mercy
reposed in him cannot be fettered by any legislative restrictions. Ex
Parte Garland, 77 U.S. at 380.
Third, experience has also demonstrated that Presidents have
exercised the power for apparent purposes that have ranged from playing
important strategic roles in matters of great public concern and
interest, to giving individualized effect to a changed sense of what is
just or merciful in a particular case. Some Presidential pardons that
have played strategic roles in national affairs include President
Jefferson's pardon of persons who had been charged and convicted under
the Alien and Sedition Act for publishing criticisms of Federalist
government policies; the pardons of President Lincoln and Johnson of
participants on the side of the Confederacy after the Civil War, and
President Bush's pardon of participants in the Iran-Contra affair. The
most famous pardon of this sort in American history may be President
Ford's pardon of former President Nixon, a decision sufficiently
unpopular at the time that it contributed to President Ford's defeat in
the next election.
``The benign prerogative of mercy'' has been exercised in very
particularized circumstances as well, where the specific facts of an
individual case have moved the President to grant clemency. Among the
recent pardons by President Clinton is that of Aldoph Schwimmer, who
had been convicted and served his criminal sentence for violations of
the Neutrality Act when he ferried aircraft to Israel during its war
for independence, as well as those of several persons serving sentences
under federal laws carrying mandatory minimums, sentences that seem
quite disproportional when compared to others. President Clinton's
pardon of Preston King, who had protested racially discriminatory
treatment by his draft board, eventually fleeing the country, also
falls within this category. Of course, strategic pardons also can have,
and most of them have had, elements of individualized mercy or justice
in them as well.
These are just two significant types, not meant to be exhaustive.
At the end of the day, anyone who has examined the history of
Presidential pardons can only conclude that the motives and rationales
behind them have been quite diverse, and as an entire group they resist
all efforts to identify a set of necessary or sufficient conditions for
a pardon to be granted. The elastic and standardless nature of the
pardon power helps account for the comment of President Carter's pardon
attorney, John Stanish, that ``[t]here never has really been much rhyme
or reason to clemencies in the past.'' Krajick, ``The Quality of
Mercy,'' 5 Corrections Magazine 46, 53 (June, 1979) (quoting John
Stanish).
The Original Understanding of the Pardon Power
None of these three elements of the pardon power were inadvertent.
In each case, the records of the Constitution Convention and the
Ratifying Conventions reflect consideration of them.
In the case of the broad scope of the pardon power, an amendment
offered by Luther Martin at the Philadelphia Convention would have made
the power exercisable only after conviction, and another by Edmund
Randolph proposed to except cases of treason from among the pardonable
offenses. 1 The Records of the Federal Convention of 1787 626-27 (M.
Farrand ed. 1911). After discussion of the need for great flexibility
in the scope of the power, Martin withdrew his motion. Randolph's
failed by a vote of 8 to 1.
The Framers concluded that pardons might be useful in advance of
conviction to further national interests, such as in situations where
granting pardon to a captured spy might produce significant military
intelligence. Randolph's motion was explicitly offered because of his
fear that the power might be abused in the case of treason. Such
pardons, he argued, could be given to agents of the very President
doing the pardoning, in which case the power to pardon might enable the
President to offer it in exchange for assistance in covering up the
President's own guilt. Yet the fear of Presidential abuse did not
prevail against the concern that the President have maximum flexibility
in exercising the power.
Likewise, placing congressional restrictions on the President's
power was explicitly proposed during the Constitutional Convention, in
the form of a proposal by Roger Sherman to give the President power to
reprieve until the next session of the Senate, and the power to pardon
only with the consent of the Senate. 1 The Records of the Federal
Convention of 1787 419 (M. Farrand ed. 1911). Like Randolph's proposal,
this one failed 8 to 1.
The conviction that flexibility was a paramount value in regards to
the pardon power seems to have proceeded from the sense that it was
impossible to anticipate in advance all of the circumstances in which
it might be useful to fulfill the power's two grand purposes: to
provide the President a valuable policy instrument in the pursuit of
national objectives, and to make available the possibility of mercy in
individual cases. As James Iredell expressed it in debate during the
North Carolina ratifying convention:
``Nobody can contend upon any rational principles, that a power of
pardoning should not exist somewhere in every government, because it
will often happen in every country that men are obnoxious to a lawful
conviction, who yet are entitled, from some favorable circumstances in
their case, to a merciful interposition in their favor . . .[Yet] it is
impossible for any general law to foresee and provide for all possible
cases that may arise . . .Where a power is acknowledged to be
necessary, it is a very dangerous thing to prescribe limits to it . .
.For this reason, such a power ought to exist somewhere; and where
could it be more properly vested, than in a man who had received such
strong proofs of his possessing the highest confidence of the people?''
Address of James Iredell, North Carolina Ratifying Convention (July 28,
1788), reprinted in 4 The Founders Constitution 17 (P. Kurland & R.
Lerner ed. 1987). Alexander Hamilton expressed much the same sentiments
in Federalist 74, when he wrote: ``Humanity and good policy conspire to
dictate, that the benign prerogative of pardoning should be as little
as possible fettered or embarrassed. The criminal code of every country
partakes of so much necessary severity, that without an easy access to
exceptions in favor of unfortunate guilt, justice would wear a
countenance too sanguinary and cruel. As the sense of responsibility is
always strongest in proportion as it is undivided, it may be inferred
that a single man would be most ready to attend to the force of those
motives, which might plead for a mitigation of the rigor of the law,
and least apt to yield to considerations which were calculated to
shelter a fit object of its vengeance.'' ``Federalist 74,'' reprinted
in The Federalist 500-01 (J. Cooke ed. 1961).
Thus we can see in the debates surrounding the ratification an
awareness of the salient characteristics of the pardon power. Those who
wrote and ratified the Constitution made the power broad and
unreviewable so that it could be utilized in circumstances where the
public interest or the interest of individual justice or mercy called
for its use, in the judgment of a single individual, the President of
the United States. As they were endorsing this power, they were quite
cognizant that its unreviewability was a source of potential abuse.
Still, in settling on the present text of the pardon clause, the
considered judgment of the Founding Era was that the clause's positive
virtues and usefulness represented the greater value when compared to
its costs.
Standards To Be Met For Amending the Pardon Power
In light of this history, any amendment to qualify the President's
pardon power ought at the very least to bear the burden of persuasion
by pointing out considerations earlier overlooked or underappreciated
which now justify a conclusion opposite to that reached by the Founding
generation. The burden here, I would further suggest, is greater than
simply convincing us that faced with the task of drafting a
Constitution today, we would come to a different conclusion as to
whether or not it ought to contain a power identical to in one now
found in Article II, Section Two, Clause 1. The fact that we are
speaking of amending the Constitution, as well as the more particular
fact that we are speaking of amending a provision in the Constitution
that has stood unchanged for over two centuries, raise additional
considerations that must themselves weigh in the balance.
Before even reaching an assessment of the pardon power as an
isolated provision, we ought to recognize that the stability of the
Constitution is a separate national asset that itself needs to be
valued. Throughout our history, reverence for the Constitution itself
has come to be one of the shared values that unifies an extraordinarily
diverse citizenry. As the world's oldest written Constitution, it has
acquired that status in significant part because it was been so
remarkably stable, amended only seventeen times after the First
Congress produced the Bill of Rights, which completed the
Constitutional design promised during the ratification process. Its
provisions have come to stand for more than ordinary legislative
enactments ever can, simply in virtue of the fact that they are
Constitutional provisions.
Years ago, the noted American legal philosopher Lon Fuller captured
an aspect of this sentiment when he warned that: We should resist the
temptation to clutter up [the constitution] with amendments relating to
substantive matters. [In that way we avoid] . . . the obvious unwisdom
of trying to solve tomorrow's problems today. But [we also escape the]
more insidious danger [of] the weakening effect [such amendments] have
on the moral force of the Constitution itself `` Lon Fuller, ``American
Legal Philosophy at Mid-Century,'' 6 J. Legal Educ. 457, 465 (1954), as
cited in Hearings on Proposed Flag Desecration Amendment Before the
Subcomm. on Constitution of the Senate Comm. on the Judiciary, 104th
Cong., 1 st Sess. (June 6, 1995) (statement of Gene R.
Nichol) (emphasis added). More recently, in direct response to current
proposals to change the pardon power, Chicago Law Professor David
Currie has been quoted as saying, ``I'm not one for tampering with the
Constitution. Something has to be very seriously wrong before you mess
with it, lest it become something like an ordinary law.'' David Currie,
quoted in Peter Nicholas, ``Judging the Cons of Power to Pardon,''
Philadelphia Inquirer Washington Bureau (February 8, 2001).
Respect for the stature that our Constitution has as a practical
matter achieved in the civic life of our country ought not, of course,
prevent us from revising features of it that have come convincingly to
be called into significant question. Still, concern that frequent
efforts to amend may well have the effect of reducing it to something
like an ordinary law ought to cause us to pause before doing so, in
order to assure ourselves by convincing evidence that the document
truly does contain a systemic flaw. Even then, prudence further
dictates that we have thoroughly explored non-amendment options that
can address all or some of the deficiencies we believe that we have
found. Non-amendment devices need not even be perfect substitutes for
constitutional amendment, but if they can ameliorate the perceived
deficiencies at acceptable costs, they may reduce the magnitude of the
constitutional deficit to the point where the wiser course is to settle
for these alternatives rather than to pursue the amendment option.
Close examination of the calls to amend the pardon power indicates that
proposals to amend it fail on both these fronts.
The immediate stimulus for proposals to amend the pardon power--the
perceived deficiency in its current formulation--are perceptions of
abuse by former President Clinton. The suggestion is that he has used
the pardon power for self-serving reasons in situations where the
legitimate purposes of the power would not have supported clemency. I
am not in a position to evaluate such charges with respect to any of
the recent pardons or commutations of former President Clinton. Even if
these perceptions prove to be accurate, however, it would be highly
doubtful that the abuses of a single President justify revising the
pardon power. Before doing that, one needs to take into account the
entire history of the use of the power, and reasonable projections
about its future use, with attention to what an amendment will cost as
well as what it will achieve.
No one can deny that it would be impossible to justify every act of
clemency by American Presidents as solely advancing either some
national policy interest or the interests of individual justice or
mercy. This should come as no surprise to us. It would not have
surprised the Founders, who understood full well that ``enlightened
statesmen will not always be at the helm.'' Federalist 10 (Madison) in
The Federalist 60 (J. Cooke ed. 1961). Unfettered power is subject to
abuse, and always will be. Fully aware of this, the drafters and
ratifiers of the Constitution adopted the pardon power as we now see
it. The relevant question is whether limiting the power would count as
a substantial improvement.
Subjecting presidential pardons to subsequent Congressional
approval, it must be conceded, will predictably enable the Congress to
intercept some patent abuses, and the availability of such review will
discourage Presidents from exercising the power in abusive ways in
additional cases as well. It will inevitably do more than this,
however.
For one thing, it will enable the Congress to intercept highly
unpopular acts of clemency, regardless of whether or not they abuse the
power. Both our better selves, as well as the interests of the country,
ought to counsel that we do not wish to impair the ability of
Presidents to undertake unpopular acts of clemency that he or she
considers well justified. Some of the most important pardons in our
nation's history have been highly unpopular at the time. Leading such a
list must be President Ford's pardon of former President Nixon. That
pardon might well have not survived Congressional review. Democrats
would have decried the pardon as inexcusably preventing a trial that
would have brought all the facts of President Nixon's involvement in
the Watergate affair to full public light. Indeed, many Democrats did
just that, although because President Ford's action was unreviewable,
they were helpless to do anything other than protest after the fact.
Had the matter been put to a Congressional vote, however, it is quite
conceivable that a sufficient number of Republicans would have found it
in their own best political interests to reject the pardon. They may
have feared that if they did not so vote that they would be held
accountable in the next election, as President Ford himself was, losing
to President Carter in 1976. President Bush's pardon of Casper
Weinberger and five others indicted for Iran-Contra related offenses
was also unpopular in many circles and may well have been thought
difficult to justify by members of Congress, were they in a position of
responsibility for it.
With the passage of time, each of these pardons has come to seem
more meritorious to me than when they were first announced. Although I
objected to President Ford's action at the time, I now believe that he
did the country a great service by sparing us the spectacle of a former
President standing in the dock for trial. The Watergate debacle, coming
on the heels of the Vietnam War, contributed enough to the public
cynicism about the national government as it is. The trial of Richard
Nixon could only have exacerbated matters. The Iran-Contra pardons,
which I also opposed at the time, have also acquired greater legitimacy
in my eyes as time has passed.
The entire affair arose out of statutes that can reasonably be
characterized as the criminalization of a foreign policy dispute. While
the Congress has the constitutional authority to exercise its power of
the purse as it did, this feature of the case, combined with the
extremely strong incentives that the now-defunct Independent Counsel
statute created to seek indictments, did produce circumstances under
which President Bush might reasonably have concluded that Defense
Secretary Weinberger and the others had been treated with undue
harshness. I suspect that I am not alone in these reassessments.
The class of unpopular pardons is not confined to those related to
national political disputes. Clemency can be used as a means for a
President to instigate or participate in a debate over the justice of
laws under which people have been incarcerated. A number of President
Clinton's recent acts of clemency assisted individuals serving
mandatory minimum sentences under circumstances that highlight the
unfairness such minimums can on occasion produce. Clemency provides an
especially powerful statement of a President's opinion of the
appropriateness of such sanctions. One can perhaps imagine President
Bush at some time in the future pardoning pro-life activists sentenced
under federal statutes that protect access to family planning clinics,
in order to serve a similar purpose.
Acts of clemency such as these will of course produce political
opposition. Many people favor ever tougher sentences in the war against
drugs, and the clash between pro-life and prochoice convictions is a
staple of our politics. I am not aiming to declare either side of
either debate the morally superior view, but rather to point out that
congressional review of pardons will reduce unpopular acts of clemency,
either in situations in which they are unpopular enough to be overruled
during the review, or because Presidents choose not to incur the
political risks. (It is one thing to pay a political price for an
effective action. That same price can well be too steep if the action
risks ultimately being ineffective because it is overturned by others.)
In advance, one simply cannot determine which unpopular clemencies will
come to be seen as statesmanlike acts of courage. What one can
determine is that subsequent congressional review will lessen the
number of unpopular clemencies granted by Presidents, costing the
country some acts of courage as the ineluctable price to be paid for
intercepting some abuses.
Congressional review will also impair the ability of the President
to act with dispatch. The fact that the pardon will not be final for
180 days may prevent clemency from being effective when we would want
it to be. It may be that national security interests of some urgency
require the cooperation of an informant, but the non-final nature of an
offered pardon causes the informant to remain silent. It may be that
the humanitarian purposes of the pardon are substantially reduced in
value by the non-final nature of a pardon. Preston King, for instance,
might have been unwilling to risk return to the United States for his
brother's funeral if his pardon had remained non-final for 180 days.
In sum, Congressional review will skew acts of clemency toward the
politically popular, away from the politically unpopular, thus reducing
the willingness of Presidents to take actions whose merit emerges only
with the passage of time. It also reduces the usefulness and value of
the power in situations in which urgency seems required. These are not
costs that we ought to incur based on our assessment of the recent
pardons alone.
Beyond these considerations, Congressional review of pardons also
has the adverse consequence of vesting in the Congress a power that
will be in considerable tension with the Constitutional design of
separated powers. As one means of protecting individual liberty, the
Constitution establishes a system of criminal justice in which the
Congress enacts the laws, the executive applies the laws, and the
judiciary review the factual accuracy of the executive's judgments. As
a general proposition, this set up evinces a belief that legislative
bodies are ill equipped to apply and review the application of laws to
individual cases. In fact, the prohibitions on both ex post facto laws
and bills of attainder, Art. I, Sec. 9, cl. 3, are textually explicit
testaments to the belief that Congress should not be able to assess
individual culpability and punishment, and that these are tasks which,
in the interests of individual liberty, are best assigned to the
executive and the judiciary. Congressional review of presidential
pardons would involve the Congress in just such tasks. After the facts
of an individual's actions are known, in reviewing a pardon decision,
Congress would be placing itself in a position to determine the
appropriateness of punishment on an individual basis. While a duly
ratified constitutional amendment would make such review
constitutional, this would not eliminate the evident tension between
the prohibitions on ex post facto law and bills of attainder that such
an amendment would create.
Non-Amendment Options
Whatever enthusiasm remains for placing Constitutional limitations
on the President's pardon power ought to be dispelled by the prudential
principle that amending the Constitution should be a remedy of last
resort, adverted to only after other ameliorative options have been
exhausted. Here, Congress has by no means exhausted the non-Amendment
options available to it.
While Congress lacks the legislative power to place direct
limitations on the President's power to pardon, there are steps it can
take that will go some distance in reducing the likelihood of future
abuses.
First, insofar as people have objected to the absence of input
from victims or their families, prosecutor or trial court
judges, Congress can enact legislation making notification of
such persons a condition subsequent to the receipt by the
Department of Justice of request for a pardon. While I make no
judgment here as to the details of S. 2042 from the last
Congress, that legislation illustrates such an approach. It may
also be that regulations issued by the Department of Justice
under existing statutory authority could acccomplish
substantially the same objectives.
Second, Congress could also rely upon its power of the purse
to prohibit any Department of Justice involvement in the
investigation, processing or preparation of documents with
respect to any pardon for which such notification had not been
given. The Constitution prevents Congress from restricting
access by the President to the Attorney General and others with
whom he or she may wish to consult, but it can prohibit the
expenditure of public funds for activities ancillary to the
exercise of the pardon power itself.
Third, as a hortatory measure, Congress could go on record as
advising the President not to proceed with any clemency as to
which he or she had not received Department of Justice advice
on a set of enumerated criteria regarding the worthiness of the
clemency. In a similar vein, Congress could urge the President
to issue a presidential directive stating his or her intentions
to comply with such procedures, and stating that any pardon
requests received by the Executive Office of the President
should be referred to the Department of Justice for such
advice, with an appropriate proviso for exigent circumstances.
This would place a burden of public justification on the
President for pardons that proceeded through non-standard
channels.
Of course, these measures would fall short of preventing the
President from exercising the pardon power autonomously. Scholars such
as Yale Law Professor Charles L. Black have argued that through the
power of the purse the Congress has the Constitutional authority to
reduce the President's staff to one--but that one could be assisting
the President in writing grants of pardon. See Charles L. Black, ``The
Working Balance of the American Political Departments,'' 1 Hastings
Const. L. O. 13, 15-16 (1974). Nor would they prevent a determined
President from executing a grant of clemency to which the Congress, as
well as the overwhelming majority of the American public, would object.
Still, I believe such measures would go a long way to ameliorate the
difficulties that have prompted these hearings. While I do not share
the view that any revisions in statutory law are warranted at this
time, should you disagree with me, I urge that measures short of
amending the Constitution are the proper steps to take.
Thank you for inviting me to share my views with you. I look
forward to answering any questions you may have. I would be happy to
work with committee staff to explore any of the non-Amendment options I
have suggested above.
Senator Specter. Mr. Quinn, you were not here when we
started the panel and since you may be, in part, a fact
witness, I would like you to stand and take the oath.
Mr. Quinn. Certainly.
Senator Specter. Do you, Jack Quinn, solemnly swear that
the testimony you will give before this Committee on the
Judiciary of the U.S. Senate will be the truth, the whole truth
and nothing but the truth, so help you God?
Mr. Quinn. I do.
Senator Specter. Mr. Quinn, we are taking a look at the
pardons of Mr. Rich and Mr. Green as illustrative for looking
forward as to what action might be taken in the future. You
have already testified as to the facts before the House
committee, and we are interested in a focus on what we might
look to in the future, but the 7 minutes are yours, so we are
interested in hearing whatever you have to say.
STATEMENT OF JACK QUINN, ATTORNEY, QUINN AND GILLESPIE,
WASHINGTON, D.C.
Mr. Quinn. I appreciate it, Senator.
Senator Specter, distinguished members of the committee, I
appreciate this opportunity to provide information about the
pardon of Marc Rich. I am well aware that all of you have
already expressed your disapproval of this pardon. I don't
expect to be able to change your mind about that today, but
before the hearing is adjourned I hope that all of you will
know that I presented a case on the legal merits, I pursued my
client's interests vigorously and ethically, and I believe this
pardon was based on the legal and diplomatic considerations
presented to the President.
My principal mission upon being retained in this matter in
the spring of 1999 was to help bring resolution to the
indictment against Mr. Rich at the Justice Department. During
an intensive period of review that lasted for several months, I
learned that the Rich indictment grew out of a patchwork of
energy regulations enacted in the Carter administration and
repealed on President Reagan's first day in office.
Those regulations attempted to limit the price of oil, but
as a result of their many exceptions they created powerful
incentives for major U.S. oil companies to try to avoid these
price caps. One way to do so involved linking price-controlled
domestic oil transactions with non-price-controlled foreign
transactions in dealings with international oil resellers.
U.S. oil producers structured transactions that provided
additional profits on foreign transactions to compensate them
for their inability to maximize profits on regulated domestic
transactions. My client facilitated this and profited from
these linkages. The complex resulting transactions are central
to Mr. Rich's indictment.
For reasons I can explain, it is critical that you keep in
mind the linked nature of these transactions because it is the
failure to see this linkage that led to a mistaken view of the
tax charges that are at the heart of Mr. Rich's indictment.
The indictment against Mr. Rich was unique for two very
important reasons. First, prosecutors used the Racketeer
Influenced and Corrupt Organizations Act, RICO, when they
indicted Mr. Rich. It was one of the first times they had done
so in a case not involving organized crime. Ignoring what I
believe was clear congressional intent, the New York
prosecutors used the RICO sledgehammer to attack Mr. Rich for
what amounted to what he thought was no more than a regulatory
dispute.
In 1989, as you know, the Department of Justice changed its
guidelines for the use of the RICO statute, essentially
prohibiting its use in tax cases like this one. It did so on
the heels of widespread criticism of the use of RICO in cases
like this. I have cited several examples of this criticism in
my testimony, but just as an example, on the pages of the Wall
Street Journal which repeatedly recognized that the U.S.
attorney's office in New York was misusing RICO, and it cited
the Marc Rich case as a prominent example of that abuse, in
1989 Yale-trained lawyer and weekly columnist Gordon Crovitz
wrote, and I quote, ``It is worth taking a second look at Mr.
Giuliani's first big RICO case. This was the much celebrated
1984 case against Marc Rich, the wealthy oil trader. A close
reading of the allegations shows that these effectively reduced
to tax charges. The core of the case is that Mr. Rich wrongly
attributed domestic income to a foreign subsidiary. Again, this
sounds like a standard civil tax case, not RICO.''
Unfortunately, by the time the Department of Justice had
finally reigned in its tactics, the Southern District
prosecutors had used RICO and its asset forfeiture provisions
to coerce Mr. Rich's companies into a $200 million guilty plea
just to survive. And Mr. Rich had been labeled a racketeer and
fugitive for not returning from his headquarters in Switzerland
to be subjected to what he believed, rightly or wrongly, would
be an unfair and prejudicial racketeering trial. Indeed, once
his companies had been forced to plead guilty by the use of the
RICO statute, Mr. Rich believed, again rightly or wrongly, that
he stood virtually defenseless as an individual to similar
charges.
The second unique aspect of this case was that although the
prosecutors were still trying to subject Mr. Rich to criminal
penalties, the major U.S. oil companies that had structured the
very transactions at issue in the indictment were themselves
pursued only civilly.
In fact, when the United States Department of Energy
independently examined transactions involving one of Mr. Rich's
major trading partners, ARCO, it concluded that ARCO had
improperly failed to account for the linked domestic and
foreign transactions, and thereby had violated the excess
pricing/profits regulations. Yet, DOE pursued ARCO only on a
civil basis for violations of the regulations. The Southern
District of New York never indicted any of the U.S. oil
companies that structured these transactions.
I want to emphasize this point. The same Department of
Energy recognized that the Marc Rich companies had correctly
taken into account the linked nature of the transactions on
their books. Despite this, the prosecutors attacked the same
transactions in their indictment against Mr. Rich. They took
the position directly contrary to the DOE regulators that the
domestic and foreign transactions should not be considered
linked for U.S. tax and energy purposes. So DOE used the
administrative process to collect hundreds of millions of
dollars in civil penalties from ARCO, while the Southern
District criminalized the conduct of Mr. Rich based on an
exactly contradictory analysis of the same facts.
This was not just my conclusion. Two of the most preeminent
tax authorities in the Nation, Professors Bernard Wolfman of
Harvard and Martin Ginsburg of Georgetown, analyzed the
transactions at issue and concluded that the Marc Rich
subsidiary correctly reported its income from those
transactions.
So in October 1999, I turned to a man with whom I had
worked in the past and for whom I have immense respect, then
Deputy Attorney General Eric Holder. I first met with Mr.
Holder about the Rich case in late October 1999. I met with him
to provide him with an overview of the flaws in the outstanding
indictment against Mr. Rich. This conversation and other
contacts with Mr. Holder are reflected in the documents I have
provided to the committee.
According to my notes of a November 8, 1999, telephone
conversation with Mr. Holder, several weeks after our first
meeting, he told me that he and other senior DOJ officials
thought that the refusal of the Southern District to meet with
Mr. Rich's attorneys was ill-considered and, in fact, in his
word, ``ridiculous.''
At Mr. Holder's suggestion, I wrote to Mary Jo White, the
U.S. Attorney for the Southern District of New York, on
December 1, 1999, asking that her office reexamine the charges
against Mr. Rich. I was denied even a meeting. This left us at
an intractable impasse, and so eventually I sought a pardon.
I know you say he was a fugitive, how could you do that? As
a general rule, I don't disagree that pardons should not be
granted to alleged fugitives, but there have been exceptions
for unique circumstances. Mr. Rich is certainly not the first
person who has been pardoned despite his alleged fugitivity.
As you heard earlier, Presidents Wilson, Truman and Carter
pardoned all of the draft evaders of their eras, despite their
fugitivity. Mr. Holder himself advocated a pardon granted to a
fugitive who had received prejudicial treatment because of his
race.
I argued my case, though certainly dissimilar from those,
as another reasonable exception because I thought our legal
arguments were compelling and because the Government's now
admitted misuse of RICO had created the very situation, Mr.
Rich's absence, that the Government cited in refusing to
discuss the merits of the case.
As Senator DeWine earlier recited, I personally notified
Mr. Holder in his office on November 21, 2000, that I would be
sending a pardon application directly to the White House. I
told him then that I hoped to encourage the White House to seek
his views. He said that I should do so, and I did later
encourage the White House to seek his views.
At no time did I attempt to circumvent the Justice
Department or prevent its views from being taken into account.
In fact, I hoped the consultation with Mr. Holder by the White
House would help me make my case for Mr. Rich because I
believed Mr. Holder was familiar with the charges and with our
arguments as to the flaws in the indictment. And more
importantly, at a minimum I knew that he realized we were at an
impasse because the U.S. Attorney's office would not discuss
the matter or consider our arguments.
On December 11, I delivered a two-inch-thick pardon
application, right here, to the White House, more than 5 weeks
before the pardon was granted on January 20. While the
application was under consideration, I wrote to Mr. Holder on
January 10 and asked him to weigh in at the White House with
his views. I sent that letter to him hoping for his support,
having been informed that his views would be considered
important.
I had that letter sent by messenger to the Department of
Justice while I was out of town, though I now understand there
were problems with its arrival at Justice and that it was
routed to and received by the Pardon Attorney on January 18.
The point here, though, is that I wanted the Department of
Justice and Mr. Holder involved because I understood their
views would be considered important.
Still later, as you know, I called Mr. Holder on the
evening of January 19 and I told him that Mr. Rich's pardon was
receiving serious consideration at the White House, and that I
understood he would, in fact, be contacted before a decision
was made.
It is now my understanding from Mr. Holder himself, from
then White House Counsel Beth Nolan, and from former President
Clinton that Mr. Holder was indeed consulted and that he
expressed a view. I am further told by Ms. Nolan that the
position he expressed was important to the ultimate decision to
grant the pardon.
This was not the first pardon granted upon application
directly to the White House rather than through the Pardon
Attorney, and it most certainly did not exclude the Department
of Justice. In filing the petition, I included the views of the
prosecutors in the form of the responses I and other counsel
had received from the Southern District for a meeting, and most
particularly in the form of the original indictment of Mr. Rich
itself. Again, I encouraged the White House Counsel's office
on, I believe, more than one occasion to seek the views of Mr.
Holder and the Department.
The pardon petition was filed directly with the White House
because I knew from personal experience as a former White House
Counsel that that is not an uncommon practice, and I knew that
this application did not fit within the four corners of the
regulations you have discussed earlier governing how the Pardon
Attorney handles pardon applications.
As the Washington Post has reported, previous
administrations in their closing days have considered pardons
directly at the White House that have not gone through the
customary Justice Department screening process. In fact, the
Los Angeles Times reported last week that 46 other pardon
petitions were submitted directly to the White House in a
similar fashion this very year.
I see the light is on, Senator. Do you want me to refrain
from the last section?
Senator Specter. No. You may finish your statement, Mr.
Quinn.
Mr. Quinn. Thank you, Senator.
Lastly, let me address the involvement of Denise Rich and
Beth Dozoretz. Yes, both were involved. Their involvement was
emphatically not, in my view, determinative or even central to
my efforts. I based my efforts on the legal case I made, as
well as on the support of the Government of Israel, not on the
false presumption that any personal or political relationship
with President Clinton would result in a favorable outcome.
Denise Rich is the ex-wife of my client and she wanted
President Clinton to grant her ex-husband and the father of her
children this pardon. I encouraged her and her daughters to
write letters to President Clinton because, as in any pardon
application, it was appropriate that the President hear from
family members.
I know that she urged the President to consider this case
carefully on two or more occasions, but I want to emphasize I
never suggested that she talk to the President about anything
extraneous to the pardon itself. Indeed, I did not know at the
time about the reported contributions or pledges that she has
made to the Clinton library, nor did I know at the time about
the extent of her fundraising activity for the Democratic
Party, nor did I know that she may have given personal gifts to
the former President.
As for the involvement of Beth Dozoretz, Beth has been a
good friend of mine for several years. She is also a close
friend of Denise Rich and she is a good friend of President
Clinton. I knew that she speaks with the former President with
some frequency, and so I was sure she would know of my efforts
and no doubt inquire about the status of our application.
That was not unwelcome to me. I believed she might provide
me with a sense of our progress or lack of progress. As a
lawyer, I wanted information from as many sources as I could
get about where my petition stood at the White House so that,
if necessary, I could refocus my efforts and my arguments to
achieve the desired result for my client.
So I spoke to Ms. Dozoretz over the Thanksgiving weekend
and told her that I would be filing a pardon petition on behalf
of Marc Rich. I encouraged her to help me be sure that the
President himself was aware of the fact that the application
had been filed with the White House Counsel's office. She did
just that and reported back to me at some point, in essence,
that President Clinton had said I should make my case to Bruce
Lindsey and other counsel in the White House Counsel's office.
Weeks later, Ms. Dozoretz talked to the President again.
What I understand her to have reported then is that the
President was impressed with the legal arguments I had made,
but was doing due diligence with lawyers in the White House so
that he understood all of the arguments for and against the
pardon.
Again, I would like to emphasize this point. The notion
that the President was going to be convinced to grant this
pardon because of support for it from Beth Dozoretz or Denise
Rich rather than because of the case we made on the law and the
important support of world leaders like Prime Minister Ehud
Barak of Israel is, in my view, just untrue.
I want to add that, as with Ms. Rich, I never asked Ms.
Dozoretz to talk to the President about this matter in a
fundraising capacity. On the contrary, from my very first
conversation, I emphasized to Ms. Dozoretz that this case could
and must be made on the merits. She did not have to be
convinced of that.
As far as I am concerned, the most conclusive evidence that
the President granted this pardon on the merits was the
telephone conversation I had with him on the night of Friday,
January 19. In that conversation, I could tell that President
Clinton had obviously read and studied the pardon petition. He
grasped the essence of my argument about this case being one
that should have been handled civilly, not criminally, and he
discussed with me whether the passage of time would permit
statute of limitations defenses in such a civil proceeding. I
told him that I would happily give him a letter waiving those
defenses, and he insisted that I provided one to him within an
hour.
These comments, I believe, reflect the state of mind of a
President who was searching to make a decision based on
fairness and equity. You may disagree with him and with me. You
may believe he made a terrible mistake, but I tell you today
that nothing, absolutely nothing, in my conversations with him
remotely suggested to me that he was thinking about or
motivated by his friendships, his politics, or his library.
Everything I saw in my dealings with the President suggested to
me that President Clinton based his decision on his judgment of
the merits and, I believe, on the strong support for the pardon
from Prime Minister Barak.
Thank you, Senator.
[The prepared statement of Mr. Quinn follows:]
[Additional material is being retained in the Committee
files.]
Statement of Jack Quinn, Esq., Attorney, Quinn and Gillespie,
Washington, D.C.
Chairman Specter. Senator Leahy, distinguished Members of the
Committee, thank you for this opportunity to provide information about
the pardon of Mare Rich.
I am well aware that most if not all of you already have expressed
your disapproval of this pardon. Nonetheless, I welcome the opportunity
to sit before you and answer your questions about the case I made and
the process I followed in making it.
I am here today as a lawyer who believes in the merits of the case
I made. I do not expect today to turn back the tidal wave of opposition
to the Rich pardon, but before today's hearing is adjourned. I hope
that all of you will know that I acted as a lawyer who pursued my
client's interests vigorously and ethically and that this pardon was
based on the case I made.
I joined the Marc Rich legal team in the spring of 1999 while I was
an attorney at Arnold & Porter. The Rich defense team over the years
included attorneys of unusual skill and unquestionable integrity, from
law firms of stellar reputation, including Len Garment, who served as
President Nixon's White House Counsel; Larry Urgenson, who held a
senior position in the Reagan Justice Department; Lewis ``Scooter''
Libby, who now serves as Vice President Cheney's Chief of Staff, and
other distinguished attorneys (App. A).
My principal mission, upon being retained, was to help bring
resolution to the outstanding indictment against Mr. Rich at the
Justice Department.
During an intensive period of review that lasted for several
months, I learned that the indictment grew out of a patchwork of energy
regulations enacted in the Carter Administration that were later
repealed on President Reagan's first day in office. Those regulations
attempted to limit the price of oil but, as in any complicated
regulatory regime, there were many exceptions.
The Carter regulations caused price discrepancies that, in turn,
created a powerful incentive for major U.S. oil companies to try to
avoid the regulatory regime. One way to do so involved ``liking'' price
controlled domestic oil transactions with non-price controlled foreign
transactions in dealings with international oil resellers.
Specifically, U.S. oil producers structured transactions that provided
additional profits on foreign transactions to compensate them for their
inability to maximize profits on regulated domestic transaction. This
resulted in complex linked transactions between the major oil companies
and resellers around the world. These transactions are central to Mr.
Rich's indictment in which he, a colleague, and two associated
companies were charged with a variety of crimes. And, for reasons I
will explain, it is critical that you keep in mind the linked nature of
these transactions, because the failure to see the linkage is what
leads to the mistaken view of the tax and energy consequences of the
transactions that the indictment represents.
The indictment that had stood against Mr. Rich for almost twenty
years was unique for two very important reasons:
First and foremost, prosecutors used the Racketeer Influenced
and Corrupt Organizations Act (RICO) when they indicted Mr.
Rich--one of the first times they had done so in a case not
involving organized crime. In 1983, prosecutors used the RICO
sledgehammer--a weapon originally designed to combat mob basses
like John Gotti--to attach Mr. Rich for what his lawyers
believed amounted to no more than a regulatory dispute about
price controls and taxes.
In 1989, the Justice Department changed their guidelines for the use of
RICO statutes--essentially prohibiting its use in tax cases
like this one. As you will no doubt recall there had been
widespread condemnation of RICO abuse by New York prosecutors.
Writing in his New York Times column in 1989, William Safire
referred to the then-unrestricted use of RICO as a ``legal
monstrosity'' adding that ``politically ambitious prosecutors
in New York, Chicago and elsewhere'' had ``been making
themselves famous by misapplying RICO to targets who have
nothing to do with organized crime'' using ``nuclear
artillery'' when only ``elephant guns would do.''
In the same vein, the Wall Street Journal has long recognized that the
US Attorney's office in New York misused RICO and that the Marc
Rich case was a prominent example of that abuse. In 1989, Yale-
trained layer and weekly columnist Gordon Crovitz wrote: ``It
is worth taking a second look at Mr. Giuliani's first big RICO
case. This was the much-celebrated 1984 case against Marc Rich,
the wealthy oil trade. A close reading of the allegations shows
that these also effectively reduce to tax charges. The core of
the case is that Mr. Rich wrongly attributed domestic income to
a foreign subsidiary. Again, this sounds like a standard civil
tax case, not RICO.''
Months later, the same paper's editorial board said: ``[The Department
of Justice] should launch a complete review of all US Attorney
RICO cases--from Mr. Giuliani's first RICO-expanding case
against Marc Rich in 1984 through current allegations against
Chicago pit traders and Michael Milken.''
In fact, just days ago two Wall Street Journal reporters recognized
that: ``The indictment against Mr. Rich that was invalidated by
Bill Clinton's pardon was based in part on aggressive
prosecution tactics later reined in by the Supreme Court and
the Justice Department.''
Unfortunately, by the time the Department of Justice had finally reined
in their tactics, the Southern District prosecutors has misused
RICO and its asset forfeiture provisions to coerce Mr. Rich's
companies into a $200 million guilty plea just to survive, and
Mr. Rich had been labeled a racketeer and fugitive for not
returning from his headquarters in Switzerland to be subjected
to what he believed would be an unfair and prejudicial
racketeering trial. Indeed, once his companies had been forced
to plead guilty by the misuse of the RICO statute, Mr. Rich
believed that he stood virtually defenseless as an individual
to similar criminal charges.
The misuse of RICO was not the only unique aspect of this
case. The second unique factor was that although prosecutors
were still trying to subject Mr. Rich to criminal penalties,
the major US oil companies that had structured the very
transactions at issue in the indictment had themselves been
pursued only civilly. In fact when the United States Department
of Energy (DOE) independently examined transactions involving
one of Mr. Rich's major trading partners, ARCO, it concluded
that ARCO had improperly failed to accountfor the liked
transactions and thereby had violated the excess pricing/
profits regulations; yet, DOE pursued ARCO only on a Civil
basis for violations of the regulations. The Southern District
of New York never indicted any of the U.S. oil companies that
structured these types of transactions.
I want to emphasize: the same Department of Energy recognized that the
Marc Rich companies had correctly taken into account the liked
nature of the transactions on their books. But, despite DOE's
recognition that Mr. Rich's companies had properly linked the
transactions for accounting purposes, while ARCO had not, the
prosecutors attacked these same transactions in their
indictment against Mr. Rich. They took the position, directly
contrary to the DOE regulators, that the domestic and foreign
transactions should not be considered linked for U.S. tax and
energy purposes. This inconsistent treatment of DOE and the
Southern District goes to the heart of the U.S. government's
case against Mr. Rich. DOE used the administrative process to
collect hundreds of millions of dollars in civil penalties from
ARCO, while the Southern District criminalized the conduct of
Mr. Rich based on a exactly contradictory analysis of the same
facts.
This was not just my conclusion and that of the reputable attorneys I
joined on Rich's defense team. Two of the most preeminent tax
authorities in the nation, Professors Bernard Wolfman of
Harvard Law School and Martin Ginsburg of Georgetown University
Law Center, had analyzed the transactions at issue and
concluded that the Marc Rich subsidiary ``correctly reported
its income from those transactions and that a court, if called
upon to decide the issue, would agree.'' Contrary to statements
that have been made about the Ginsburg/Wolfman analysis, both
lawyers were fully aware of the prosecutors' evidence against
Mr. Rich, including the allegedly ``sham'' transactions and the
record-keeping from the ``pots.''
Put simply, the indictment against Mr. Rich was flawed--not just in
my view, but also in the views later expressed by two departments of
the United States Government. The case was built on a perception of the
transactions later directly contradicted by the Department of Energy,
and it was inappropriately ratcheted up into a RICO case in a manner
the Department of Justice later acknowledged was inappropriate. The
U.S. Government itself has undermined the Rich indictment, not just me
or other lawyers for Mr. Rich.
Knowing all of this, I found it difficult to believe that Mr.
Rich's lawyers had been unsuccessful for more than a decade in trying
to convince the Southern District of New York to re-examine the charges
against him. So, in October `1999, I turned to a man with whom I had
worked in the past and for whom I have immense respect--then Deputy
Attorney General Eric Holder.
I first met with Mr. Holder about the Rich case in late October
1999. The purpose of the meeting was to provide Mr. Holder with an
overview of the flaws in the outstanding indictment against Mr. Rich.
This conversation and other contacts with Mr. Holder are reflected in
the documents I have provided to the Committee (App B). According to my
notes of a November 8, 1999 telephone conversation with Mr. Holder
several weeks after our meeting, he told me that he and some senior DOJ
officials thought that the refusal of the Southern District to meet
with Mr. Rich's attorneys was will considered and in fact
``ridiculous.'' Subsequently, he told me that some officials at DOJ
came to believe that on this matter, ``the equities were on our side,''
at least with respect too our request for a meeting.
At Mr. Holder's suggestion, I wrote to Mary Jo White, the US
Attorney for the Southern District of New York, on December 1, 1999,
asking that her office re-examine the charges against Mr. Rich so that
we might bring the matter to some resolution. But like the long list of
distinguished lawyers before me, I, too, was denied even a meeting.
I have searched in vain for a written Justice Department policy
that directs U.S. Attorneys never to discuss case merits with attorneys
for alleged fugitives or other absent persons. No such policy exists.
Indeed, there are many instances in which Justice Department
prosecutors have engaged in discussions about case merits with indicted
defendants residing abroad.
Regardless of this absence of a firm government policy, even main
Justice was unwilling to talk to us about the merits of the case,
because Mr. Holder believed he must defer to the Southern District and
not overrule his subordinates. This left us at an intractable impasse.
Now, as a general rule, I agree that pardons should not be granted
to alleged fugitives but there must be exceptions for unique
circumstances. Mr. Rich is not the first person who has been pardoned
despite he alleged fugitivity. Presidents Wilson and Carter pardoned
all of the draft evaders of their eras. Mr. Holder himself advocated a
pardon granted to a fugitive who had received prejudicial treatment
because of this race. I viewed my case, though dissimilar, as another
reasonable exception because I thought our legal arguments were
compelling and because the government's now admitted misuse of RICO had
created the very situation--my client's absence--that the government
cited in refusing to discuss the merits of the case.
Accordingly, we decided in October 2000 to seek a presidential
pardon. I believed that the President, as the chief law enforcement
officer for the nation, essentially serves as our country's top
prosecutor. I believed a pardon petition would provide the president
with the opportunity--if we could convince him of the merits--to reduce
this case to its proper proportions: a civil regulatory dispute.
I personally notified Mr. Holder in his office on November 21,
2000, that I would be sending a pardon application directly to the
White House. I told him then that I hoped to encourage the White House
to seek his views. He said I should do so. At no time did I attempt to
circumvent the Justice Department or prevent its views from being taken
into account. In fact, I hoped that consultation with Mr. Holder by the
White House would help me make my case for Mr. Rich, because I believed
Mr. Holder was familiar with the charges and with our arguments as to
their flaws. Most importantly, I knew that he realized we were at an
impasse because the U.S. Attorney's Office would not discuss the matter
or consider our arguments.
On December 11, 2000, I delivered a two-inch thick pardon
application to the White House--more than five weeks before the pardon
was granted on January 20, 2001. While the application was under
consideration, I wrote Mr. Holder on January 10, 2001 and asked him to
weight in at the White House with his views. I sent that letter to him
hoping for his support, having been informed that this views would be
important. I have that letter sent by messenger tot he DOJ, through I
now understand there were problems with its arrival and that it was
routed to and received by the pardon attorney on January 18.
Still later, I called Mr. Holder the night of January 19, 2001, and
told him that Mr. Rich's pardon was receiving serious consideration at
the White House, and that I understood he would be contacted before a
decision would be made at the White Hour. It is now my understanding
from Mr. Holder, from then-White House Counsel Beth Nolan and from
former President Clinton, that Mr. Holder was indeed consulted and that
he expressed a view. I was told that his view was important to
President Clinton's ultimate decision.
I want to emphasize that the process I followed in filing the
pardon petition was one of transparency at both the Department of
Justice and the White House. It was not the first pardon granted this
way and it most certainly involved the Justice Department. In filing
the pardon petition, I included the views of the prosecutors--in the
form of the responses I and other counsel had received from the
Southern District for a meeting and, most particularly, in the form of
the original indictment of Mr. Rich.
Furthermore the process this pardon followed gave the president the
opportunity to weight his decision carefully. For over five weeks the
White House had time to consider the views of the White House attorneys
the Justice Department and anyone else with whom it chose to discuss
the matter to make a judgment on the merits.
The pardon petition was field directly with the White House because
I knew from personal experience as a former White House Counsel that it
was not an uncommon practice. As the Washington Post has reported,
``previous Administrations in their closing days'' have considered
pardons directly at the White House that have not going ``through the
customary Justice Department screening process.'' In fact, the Los
Angeles Times reported last week that 46 other pardon petitions were
submitted directly to the White House in a similar fashion.
Lastly, let me address the involvement of Denise Rich and Beth
Dozoretz. Yes, both were involved. But I never believed their views
would be the dispositive consideration for the President. I based my
efforts on the legal case, as well as the support of the Government of
Israel, not on the false presumption that any relationship with
President Clinton would result in a favorable outcome.
Denise Rich is the ex-wife of my client, and she wanted President
Clinton to grant her ex-husband and the father of her children this
pardon. I encourage her and her daughters to write letters to President
Clinton. As in any pardon application, it was appropriate that the
President hear from family members. I also encouraged Ms. Rich to
follow up when she had the opportunity to see President Clinton at a
White House holiday party--simply by making sure he had seen her
letter. I know that she urged the President to consider this case
carefully on that and perhaps another occasion. but I never suggested
that she talk to the president about anything extraneous to the pardon
itself. Indeed, I did not know at the time that she had made
contributions in the past to the Clinton Library, nor did I know at the
time the extent of her past fund raising for the Democratic Party.
As for the involvement of Beth Dozoretz, Beth has been a good
friend of mine for several years. She is also a close friend of Denise
Rich, and she is a good friend of President Clinton. I knew that she
talked to the President with some frequency.
I expected that Ms. Dozoretz would inquire about the status of our
application. And I believed she might provide me with a sense of our
progress or lack there of. As a lawyer, I wanted information from as
many sources as I could get about where my petition stood in the White
House, so I could refocus my efforts and my arguments to achieve the
desired result for my client.
I talked to Ms. Dozoretz over the Thanksgiving weekend and told her
I would be filing a pardon petition on behalf of Marc Rich, the ex-
husband of her close friend, Denise Rich. I encouraged her to help me
be sure that the President himself was aware that we had filed the
petition. She did just that and later reported back to me that
President Clinton had said I should make my case to Bruce Lindsey and
others in the White House Counsel's office.
On another occasion, Ms. Dozoretz talked to the President again. I
wanted to hear from Ms. Dozoretz any information she might glean from
the President as to where my petition stood with him. What I understand
her to have reported is that the President was impressed with my
arguments but was doing due diligence with lawyers in the White House
so that he understood all the arguments--for and against the pardon.
Let me be clear on this point: the notion that the President was
going to be convinced to grant this pardon because of support for it
from Beth Dozoretz or Denise Rich, rather than because of the case we
made and the support of leaders like Ehud Barak, the Prime Minister of
Israel, is, in my view, untrue. Yes, I was eager to hear any reports
about what the President was thinking. Yes, I was eager to hear any
reports about what the President was thinking. Yes, Ms. Dozoretz had
been a political supporter of the President. But she was no longer the
Finance Director for the DNC. She had left that job in October 1999. At
this time, she was a fried of the President. And let me be clear about
this as well: I never asked Ms. Dozoretz to talk to the President about
this in a fund raising capacity; on the contrary, I emphasized to Ms.
Dozoretz that this case could and must be made on the merits. She did
not have to be convinced of that.
As fare as I am concerned, the most conclusive evidence that the
President granted this pardon on the merits was the twenty-minute
telephone conversation I had with him on the night of Friday, January
19 th. In that conversation, I could tell that President
Clinton had obviously read and studies the pardon petition. He grasped
the essence of my argument about this case being a case that should
have been handled civilly, not criminally, and discussed whether the
passage of time would permit statute of limitation defenses. I told him
that I would waive those defenses. President Clinton then requested a
letter to that effect within an hour.
These comments reflect the state of mind of a President who was
searching for a decision based on fairness and equity and his
understanding of a regulatory system long ago repealed by the United
States. you may disagree with him and me. You my believe he made a bid
mistake. But I tell you that nothing--nothing--in my conversations with
him remotely suggested to me that he was thinking about his
friendships, his politics, or his Library.
In this case as in others, when the press dissects a policy
decision made by any elected official in Washington, it more times than
not may find that people were involved or were nearby who at one time
or another have raised money for political campaigns. That's why I
don't disagree with Senator John McCain, who said about this matter:
``The President may have had the purest of motives, but the appearance
is bad.'' The appearance is bad, as it often is in Washington when
money has been raised by those who are close to elected officials. But
I believe that President Clinton based his decision on his judgment of
the merits, and I see no evidence to the contrary.
As we sit here today and discuss the pardon process and any changes
that might be made to improve on it, it is useful to remember that the
Constitution grants the pardon authority only to the President. The
Justice Department has a Pardon Attorney, who reports to the Deputy
Attorney General, and one of the major functions of the Deputy Attorney
General is to serve as the departmental liaison with the White House
staff and the Executive Office of the President, including specifically
with respect to pardons. I informed the Deputy Attorney General of may
petition. I encouraged the White House Counsel to seek his views. I did
this over a period of two months, having briefed him about the case for
more than a year before that.
The only man to serve both as president and Chief Justice of the
Supreme Court, William Howard Taft, wrote that the reason the U.S.
Constitution vests and absolute pardon power in the President is that
it is ``essential'' that some authority ``other than the courts'' have
the power to ameliorate or avoid the outcome of particular cases. The
pardon power has never been limited to being granted only after a
person has stood trail. As a 1995 Justice Department memorandum
attests: ``Throughout this nation's history, Presidents have asserted
the power to issue pardons prior to conviction.'' Effects of a
Presidential Pardon, 1995 WL 861618 (June 19, 1995). The Iran Contra
pardons by President Bush are just one recent example.
In short, as then-Chief Justice Taft wrote for the Supreme Court in
1925: ``Executive clemency exists to afford relief from undue harshness
or evident mistakes in the operation or enforcement of the criminal
law. The administration of justice by the courts is not necessarily
always wise or certainly considerate of circumstances which may
properly mitigate guilt.''[Ex parte Grossman, 267 U.S. 87, 120-21
(1925)]
President Clinton properly gave serious consideration to Mr. Rich's
pardon application. He demanded that Mr. Rich's lawyers waiver all
procedural defenses related to the transactions in question so that Mr.
Rich would be po0tentially subject to civil penalties, such as those
faced by others who were involved in similar transactions. In short, I
believe our nation's top prosecutor handled this case in a way that it
should have been handled years ago.
In conclusion, Mr. Chairman, while you may disagree with President
Clinton's decision, I believe the facts establish that I represented my
client's interest fairly, vigorously and ethically. And I carried out
this representation keeping both the Department of Justice and the
White House informed.
Thank you for this opportunity to testify.
Senator Specter. Mr. Quinn, we are looking to the future,
and the merits look very thin to me, but the appearance of
impropriety is overwhelming. What could be done when you have
someone in your position, former White House Counsel, very
close to the President?
You have a conversation with him on January 19, the day
before he is to leave office, which was very rare time,
considering what he had to do. To call that special access
would be a vast understatement. Then you consult with Ms. Beth
Dozoretz for, as you say, the purpose of finding out what had
happened. But it is an obvious inference that there is an
interest in having her weigh in as an official of the
Democratic National Committee.
Then the Pardon Attorney is not consulted. The pardon falls
outside the parameters of the Department of Justice regulations
which the President ignores and has a constitutional right to
ignore. On an inquiry from the Pardon Attorney a few hours
before the President is to leave office, about 11 hours before
he is to leave office, the Pardon Attorney is told that Mr.
Rich and Mr. Green are living abroad. That creates quite a
murmur from people who were listening to that.
Now, looking beyond Marc Rich, what can be done to see to
it that the very powerful who have the President's ear, like
Jack Quinn and Beth Dozoretz, are counterbalanced at least by
having somebody in the White House know something more than
Marc Rich is living abroad, so that you have the opportunity
for a just decision, to say nothing about the opportunity for
the appearance of propriety at the highest level of our
Government?
Mr. Quinn. There was an awful lot embedded in that question
and I would like to try to deal with--
Senator Specter. Well, not nearly as much as in your
testimony, Mr. Quinn.
Mr. Quinn.--to deal with as much of it as I can. As I have
said, Senator, I do believe the pardon was granted on the
merits. I don't disagree with you that one of the unfortunate
aspects of this is that this and other decisions were not
gotten around to until very, very late, to say the least.
Senator Specter. Mr. Quinn, I understand that you believe
it was granted on the merits. You are the attorney for the
petitioner. You have also said you think it was the right
decision. Whether it was granted on the merits is in the mind
of President Clinton.
When you say it was the right decision, you are about the
only person who thinks so. It is hard to find a Senator from
the other side of the aisle--I don't think it is hard, pardon
me--it is not possible to find a Senator from the Democratic
side of the aisle, and headlines are that the Democrats are
deserting the President over it. Then you have the appearance
question. So what I would like you to direct your attention to
in the few minutes we have is what can we do for the future.
Mr. Quinn. Well, I do have a thought about that, Senator.
In retrospect, I suppose if I had to make a recommendation for
you as to how this should be handled in the future, I think
that the current and future Presidents should adopt by
executive order some process that would be sufficiently
transparent and ensure the input of as many people as possible
and appropriate that their decisions on matters like this would
not be subject to criticism because of the appearances that you
discussed.
Senator Specter. If the President adopts an executive
order, is he bound to follow it? Executive orders are fine for
the whole Government. The President is the executive. He can
impose an order that people have to follow, but does the
President have to follow an executive order or can he
technically rescind an executive order and do as he pleases? In
one act of violating the executive order, both may be implied.
Mr. Quinn. Yes, you are quite right. A President could
theoretically at least repeal the executive order that governed
this process and then choose to ignore the process. But the
reason I suggest that as the appropriate vehicle for doing it
is that I think there are serious constitutional problems with
the notion of doing it legislatively through statute.
Senator Specter. What is wrong with former Senator
Mondale's idea, Mr. Quinn?
Mr. Quinn. As a former White House Counsel, I spent an
awful lot of time defending the prerogatives and the powers of
the presidency and the office of the presidency. I would worry
that this process would become imbued with politics and that
the cure--
Senator Specter. And the current process is not imbued with
politics?
Mr. Quinn. Well, I think in general it is not, and I--
Senator Specter. How about here?
Mr. Quinn. Sorry?
Senator Specter. How about this case? In general, it is
not. How about this case?
Mr. Quinn. I don't disagree with you that there have been
appearance problems here that require people like myself to
offer an explanation as to--
Senator Specter. My red light just went on, but you may
finish your answer, Mr. Quinn.
Mr. Quinn.--as to the case we made. But it is certainly not
my impression that the pardon process is inherently or even
occasionally a political process.
Senator Specter. Senator Feinstein?
Senator Feinstein. Thanks very much, Mr. Chairman.
Mr. Quinn, you are obviously a very smart man, a very good
lawyer.
Mr. Quinn. Thank you, Senator.
Senator Feinstein. I listened to your opening statement and
you made a couple of points. First, about you communications
with Justice. I looked back to your Exhibit B and counted at
least eight different occasions where you had made contact with
Justice. So that is one point.
The second point was when you went over the merits of the
case. Let me read what I think happened, and you correct me as
I go along, interrupt me where this is wrong.
At the time, Federal law limited the price a seller of
crude oil could charge, and this amount varied depending on how
the oil was classified. The oil classifications vaned according
to the history or the level of production of the well from
which the oil came.
One way to make illegal profits at the time was to buy
crude oil at a classification that had a low maximum price,
illegally alter that classification, and then sell it at a
higher maximum price. To avoid getting caught, a buyer would
often arrange for the oil to be repeatedly bought and sold
through a series of oil resellers, called a daisy chain, thus
effectively disguising the change in classifications through a
blizzard of paperwork.
Now, as I understand it, the prosecutors allege that Rich
and Green and their companies engaged in a number of daisy
chain oil transactions, reaping illegal profits on millions of
barrels of crude oil. In carrying out this scheme, they
allegedly prepared numerous false invoices and other documents
as well as more than one set of books. Ultimately, the scheme
netted Rich and Green over $100 million in illegal profits.
The prosecutors allege, then, that the scheme violated both
the Federal energy law and the RICO statute. Once Rich and
Green had made their illegal profits, they moved this money
offshore to hide it from the IRS. Not surprisingly, they filed
false tax returns, omitting this income. Hence, the tax evasion
charges.
Finally, while Americans were being held hostage in Tehran,
Rich and Green illegal bought millions of barrels of crude oil
from Iran. They then took a number of steps to disguise these
purchases, including using a secret code. In 1984, as I
understand it, their companies pled guilty to those charges,
However, Rich and Green fled the country, ending up in
Switzerland, where prosecutors attempted to extradite them.
Switzerland, of course, refused to hand them over.
Now, does this accurately set forth the charges?
Mr. Quinn. It accurately reflects the allegations that were
made, but there are answers at each point. And, frankly, the
attachments to our pardon application, including the arguments
we made to the Southern District in my letter in 1999, as well
as the presentation made by Mr. Urgenson several years earlier,
address each and every one of those allegations.
The tier trading or Daisy Chains, as you call them, were
not themselves illegal. What, in essence, was going on here was
that companies like ARCO structured transactions that would
enable them to take, by way of example, a barrel of domestic
oil for which they could only charge $10, move it to a reseller
who, as you say, in turn would transfer it, and in the course
of doing that end up getting $30 for that barrel of oil. That
set of transactions was permissible under these complex
regulations.
But if you think about this, what is going on is that ARCO
has allowed somebody to take a barrel oil that they could only
get $10 for and end up getting $30 for it. Well, ARCO and the
other major oil companies didn't want to do that. So Rich
helped them--
Senator Feinstein. Are you saying this was common practice
at the time for major oil companies?
Mr. Quinn. I am saying that ARCO and other major oil
companies engaged in these activities with the effect of ending
up getting more for a foreign barrel of oil than it was worth.
And when you average the two, instead of getting $10 for that
barrel of oil, they were, in effect, getting $27.50.
The Department of Energy went after ARCO for doing that and
said, you are misleading us about these domestic transactions
in your failure to link them to the foreign transactions. The
Department of Energy went after ARCO for hundreds of millions
of dollars and won, and in the course doing that concluded that
Rich, in his accounting, has properly linked the foreign and
domestic transactions and that ARCO had not.
Now, by the way, I alluded very quickly to the analysis
undertaken by Professors Wolfman and Ginsburg, and all of the
allegations that you recited were before the tax professors
when they did their analysis.
Senator Feinstein. I am told there are two sets of books
and that those professors were only given one set of the books.
Is that correct?
Mr. Quinn. I do not believe that is the case. I believe the
tax professors knew that the Southern District claimed there
was a duplicate or second set of phony books. But our response
is that there was not a second set of books. There was a ledger
by which Rich and people like ARCO were keeping track of the
money they needed to get back for making these under-priced
domestic trades.
Senator Feinstein. Are you saying that Mr. Rich essentially
did the same thing that ARCO did, except ARCO got away with it
at the time and he did not and so his companies pled guilty?
Mr. Quinn. Senator, I am not only saying they did the same
thing. The transactions, as I understand it, were structured by
the oil companies, not by Rich. Rich facilitated them.
The guilty plea--frankly, you are familiar with the
draconian asset forfeiture provisions of RICO. What Marc Rich
would say to you is that they entered into that corporate
guilty plea as the only thing they could do to keep the company
because had they not done that, under the forfeiture provisions
they could have lost the entire company and all of its assets.
Senator Feinstein. Let me ask this question. You have
asserted that as part of your deal with President Clinton, Rich
waived all statute of limitations defenses. In theory, the
Government then could still pursue Rich in civil court. The
President has also offered this argument in defense of the
pardon.
However, my understanding is that since Rich's companies
paid all the back taxes, Rich may owe nothing and the statute
of limitations waiver becomes irrelevant. Do you agree that
this waiver is irrelevant?
Mr. Quinn. No, I do not, Senator, and I think frankly that
that analysis mixes up the tax and the energy regulatory
regimes that could apply here.
Senator Specter. Do you have many more questions, Senator
Feinstein?
Mr. Quinn. Can I just give the Senator--
Senator Feinstein. I didn't realize my light went on. I
apologize, Mr. Chairman. I am sorry.
Mr. Quinn. What I would like to do, Senator, is just cite
to you a section of the U.S. Code, 15 U.S.C. 754, sub (3(a)(4),
and I am happy to provide you with a copy of it today, which I
believe would provide the basis for at least an argument by the
Department of Energy that Messrs. Rich and Green could be held
to account civilly for the transactions that you and I
discussed a few minutes ago. I hasten to add that they would,
of course, defend themselves on the merits in any such civil
action, but they have agreed to subject themselves to such a
proceeding.
Senator Feinstein. Thank you. Thank you, Mr. Chairman.
Senator Specter. Thank you, Senator Feinstein.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Mr. Quinn, you are obviously a good lawyer, a strong
advocate doing what you should be doing as far as presenting
your case today. Let me look at some of your written testimony
and then ask you a question about it.
You say, ``Put simply, the indictment against Mr. Rich was
flawed, not just in my view but also in the views later
expressed by two departments of the U.S. Government. The case
was built on a perception of the transaction later directly
contradicted by the Department of Energy. It was
inappropriately ratcheted up into a RICO case in a manner that
the Department of Justice later acknowledged was
inappropriate.''
Now, unfortunately we don't have the prosecutor here. We
don't have the Justice Department here. We don't have anybody
to give the counter-argument for that today. But you are not
inferring or stating that the Justice Department today thinks
this was a bad case or that they shouldn't have brought the
case or that they think it is a flawed case. I mean, that is
not their position, is it?
Mr. Quinn. Senator, if the prosecutors were here, they
would tell you I am full of beans. They feel very different
about this than I feel about it. They feel differently than the
reputable and good attorneys who I joined on this defense team
feel about it.
I, as you indicated, made a case as an advocate on the
merits. I think it was a solid case. I think that each element
of the indictment can be attacked. I do believe that if one
considers that RICO really was, at least in the minds of Rich
and Green, kind of the straw that broke the camel's back here--
and, look, we can disagree with whether or not that justified
the actions they engaged in. And, of course, as you know, I was
not their attorney at the time that they chose not to return to
the United States, and I hope I can honestly say to you that I
would have encouraged them to do so at that time and stand
trial.
But RICO really was a sledgehammer here, and it was subject
to the kind of criticism I recited from opinion pages in any
number of good publications, like the Wall Street Journal and
the New York Times, and it was what they thought would prevent
them from getting a fair trial. And the Department of Justice
itself, then, in 1989 acknowledged that RICO shouldn't be used
in cases like this.
On the second point, I think it really is pretty remarkable
that you had the prosecutors in the Southern District arguing a
tax case on the basis of an analysis of the transactions that
was 180 degrees different from the analysis of the same
transactions by the very regulatory department charged with
enforcing these price control regulations. So I don't think it
is unfair to say that the Government was really of two minds
here, and that has to call in question some of the core charges
that were laid down here.
Senator DeWine. Mr. Quinn, thank you. Mr. Chairman, thank
you.
Senator Specter. Thank you very much, Senator DeWine.
Senator Sessions?
Senator Sessions. Thank you very much.
You indicated that the goal was to bring resolution to the
indictment, Mr. Quinn, and I think that wasn't the goal. The
goal was to get the charges dismissed. The way you normally
bring a resolution to an indictment is to come forward and face
the charges.
Mr. Rich was indeed of that very rich, billionaire-level
wealth. He was obviously arrogant, and he determined he was
going to try to buy his way out of this deal, it seems to me,
and not face the music like every other poor person who gets
hauled before a court.
Would you comment on that?
Mr. Quinn. Yes, Senator. Certainly, when I undertook this
representation and communicated with Main Justice and with the
Southern District, it was my hope and my aim to persuade them
to drop the charges.
Senator Sessions. Let me pursue that a minute. Was there a
predecessor counsel to you on this matter?
Mr. Quinn. Yes, sir.
Senator Sessions. And they had been negotiating with the
United States Attorney's office in the Southern District of New
York for quite a number of years, had they not, off and on?
Mr. Quinn. No, sir. In point of fact--
Senator Sessions. There had been no discussions about Mr.
Rich appearing and answering the charges?
Mr. Quinn. I want to be careful here because I am under
oath. It is my impression that since at least the mid-1980's,
the U.S. Attorney's office in New York would not sit down and
discuss the merits of the case, the merits of the case.
There was a conversation when now Judge Obermeier was in
the U.S. Attorney's office, but as I understand it, he
indicated in the course of that conversation that he would not
agree to devote the resources of the office to review the
merits of the case without pre-conditions that the clients
thought were impossible to agree to.
But at least since the late 1980's or 1990, and in
particular, Senator, since the analysis by the tax professors,
it has been the view of the attorneys who preceded me on this
matter that the U.S. attorney's office would not give anything
approaching a thoroughgoing review of that tax opinion.
Senator Sessions. They were taking the view, I think, that
most United States attorneys' offices take that you don't
negotiate with a fugitive.
Mr. Quinn. You are quite right.
Senator Sessions. They have to submit themselves to the
authority of the court before you enter into a negotiation.
Mr. Quinn. You are quite right, Senator, and may I just
address that?
Senator Sessions. You mentioned that these were tax
charges, but the RICO had to have been founded on false claims
or false statements or mail fraud. Was it mail fraud charges or
wire fraud that formed the basis for the RICO case?
Mr. Quinn. Yes, sir, and can I address that and can I also
just back one--
Senator Sessions. I know what you are saying. You are
saying it was fraud that involved tax. But it also had to be
fraud or they couldn't have charged it as a mail fraud, isn't
that right?
Mr. Quinn. The Supreme Court in the McNally case, the later
McNally case, in effect, disallowed the fraud charge that was
the RICO predicate. You are quite right--
Senator Sessions. So you think under McNally that these
charges would have been invalid?
Mr. Quinn. Yes, sir.
Senator Sessions. Then you were home free. Why didn't you
come in and move to dismiss?
Mr. Quinn. Well, they couldn't come in and make a motion to
dismiss because they weren't within the jurisdiction of the
court, so they were in this catch-22. And with respect to--
Senator Sessions. They had a decision to make, either come
in, submit themselves to the court and file a motion to dismiss
the RICO charges.
Mr. Quinn. Right, right.
Senator Sessions. Wouldn't that have been the proper thing
for them to do?
Mr. Quinn. It certainly would have been an alternative, but
they were unwilling to come back and they were--
Senator Sessions. That is right. They were unwilling.
Mr. Quinn. Yes.
Senator Sessions. They didn't want to do what everybody
else has to do. They wanted to beat the system another way.
Mr. Quinn. Correct. Now, may I add one other point about
this fugitivity because you are quite right that the Southern
District took the position that it would not have discussions
with fugitives or absent persons? And I would be happy to send
to you a document that was prepared for me and for Mr. Libby
which reports on a series of plea bargains with domestic and
international fugitives by various U.S. attorneys' offices.
Senator Sessions. Well, I know you could do that.
Mr. Quinn. I am to submit it.
Senator Sessions. They took the position they didn't want
to do that.
Could you have approached the Chief of the Criminal
Division and asked for an independent review of the RICO
charges and gotten a high official in the Department of Justice
that wasn't a part of the prosecution team?
Mr. Quinn. Well, as a matter of fact--
Senator Sessions. Did you ever think about asking for that?
Mr. Quinn. I think, in effect, we did, sir.
Senator Sessions. Did you formally ask for that and did you
have a review by anyone in the Department of Justice occur?
Mr. Quinn. Yes, I think we did. When I communicated with
Mr. Holder in 1999, I provided to him materials that outlined
all the arguments we made against the indictment, and we copied
Mr. Robinson in the Criminal Division and the head of the Tax
Division on those arguments. After the Southern District--
Senator Sessions. Did you ask them to overrule the opinion
of the United States attorney in Manhattan?
Mr. Quinn. In effect, I sure did.
Senator Sessions. Did they do so?
Mr. Quinn. No, they did not.
Senator Sessions. So that would have been a proper avenue,
I think, if you were unhappy with the charge of the United
States attorney. And isn't it true that the Attorney General
could, in fact, remove the United States attorney if they
failed to comply with a decision of the Attorney General?
Mr. Quinn. Of course, but all I am saying to you, Senator,
is that I believe we availed ourselves of that avenue with no
success.
Senator Sessions. But this is President Clinton's
Department of Justice.
Mr. Quinn. I understand that.
Senator Sessions. They work for him. So you are saying that
President Clinton couldn't get the Department of Justice to
even review the case for criminal appropriateness, and so he is
going to grant a pardon about a complex matter, of which I
submit he knew very little law. He may have known the politics,
but he didn't know the law.
Why wouldn't that have been the appropriate action for the
President, if he was troubled by a prosecution to say I want
the Chief of the Criminal Division--
Senator Specter. Do you have many more questions, Senator
Sessions?
Senator Sessions. Yes, but my time is out.
Senator Specter. Well, finish this one.
Senator Sessions. So why wouldn't that have been the
appropriate thing rather than just ripping out the legitimacy
of the pardon?
Mr. Quinn. Senator, it would have been an alternative, but
it is not one I asked him to take.
Senator Sessions. I would suggest that had that happened,
you wouldn't have received the opinion you wished.
Senator Specter. Thank you, Senator Sessions.
Professor Gormley, you say that the pardon of President
Nixon didn't look too good in 1974, but it looks pretty good 27
years later. Do you think the pardon of Marc Rich will look
pretty good in 2028?
Mr. Gormley. I don't, Senator Specter, and my point is that
I think the danger in tinkering with the Constitution isn't the
Marc Rich cases that I think are always going to be, as I
referred to, the bad pennies. One can question them. There are
a number of instances in history.
Lincoln was accused of favoring his friends from Kentucky.
Thomas Jefferson pardoned members of the anti-Federalists who
were supporters of his. There are always those instances, and I
think that would actually be the good part of having something
like the Mondale amendment, that you could get at those
questionable pardons.
Senator Specter. Do you think there is a good part to the
Mondale amendment?
Mr. Gormley. Yes, that is the good part. The bad part, just
to make clear, is I am concerned with the more difficult ones
like the Ford pardon of Richard Nixon, like perhaps President
Buchanan's pardoning of the Mormon settlers during a very
difficult time of insurrection, like perhaps President Bush's
pardoning of the Iran-contra defendants, very controversial at
the time.
There has to be a way to put closure to some of these
things, and I think if you put them up to a vote at the time
they would be vetoed, and that is my concern, Senator Specter.
It is not that you wouldn't occasionally find some that
legitimately you might want to go in and overturn.
Senator Specter. But as you characterize a veto, if two-
thirds of the House and two-thirds of the Senate say no, it is
true it is contemporaneous. It may take a long time for the
Mondale amendment to succeed. The ERA still hasn't succeeded.
But you can't override a Presidential veto very easily on
legislation and my instinct is it would be a fairly tough vote
to get two-thirds in the Congress.
Mr. Gormley. I think it would be tough, but again picture
the Ford pardon of Nixon. You would have some Members of
Congress naturally who would vote along party lines in a
situation like that, and then you would have a number of
Members of the House and of the Senate who would have this
enormous pressure on them from their constituents who are
outraged by this who end up buckling under to that pressure.
That would be my concern.
Senator Specter. So you think a national outrage is really
something that ought to be ignored, a cooling-off period, 27
years, and then have the vote?
Mr. Gormley. Well, no, but the point is that if we put a
thumbs-up or thumbs-down system on many of these sensitive
pardons and we just let the public input take over, we would
make some bad decisions, I think.
Senator Specter. But when you talk about public input and
you talk about two-thirds, the public reaction is not exactly
an irrelevancy. When you deal with some of the historical
precedents, maybe yes, maybe no. You have a fair size core of
independents in the Congress.
Let me turn to Professor Schroeder for a question.
Professor Schroeder, you say, and I agree with this, that we
ought to pursue remedies which are non-constitutional means,
and you cite the statute. What do you think from that statute
or other non-constitutional means would be effective to deal
with this issue? I incorporate by reference, Professor
Schroeder, my question to Mr. Quinn.
Mr. Schroeder. Senator Specter, I think at the end of the
day if the President wants to grant a pardon which is highly
unpopular or quite controversial or contentious, under the
current constitutional regime he or she is going to be able to
do that. The Constitution gives them that power.
That said, I am somewhat conflicted here because I, like
Mr. Quinn, spent some time defending executive power when I
worked at the Justice Department in the Office of Legal
Counsel. But then I have also spent some time working for this
committee, so I respect the power of the Congress as well.
You could set up by statute, in my opinion, that would set
out a list of procedures, requirements, for a pardon
application that went into the system--
Senator Specter. Statutory?
Mr. Schroeder. Yes, that would have to be complied with by
the Pardon Attorney, not a restraint on the President, but by
the Pardon Attorney. You could then, I think, in that same
enactment encourage the President--and that is all you could
do--to utilize that system in all except the very rarest of
circumstances.
And if you wanted to go further, I believe under the
Constitution using your power of the pursue you could set up a
system whereby if the President wanted to do something
extraordinary, you could withhold the expenditure of Federal
funds in the Justice Department to assist in that regard. So
you would put tremendous pressure on the President.
He could do his own investigation. He could talk to his own
advisers, he could talk to the Attorney General. But you
couldn't have anybody in the Justice Department or the Pardon
Attorney picking up the phone and making a long-distance phone
call on the Government's nickel or sending the FBI out to do
investigations.
So you would have a kind of two-tiered system when you were
in the system. You have got this transparent process, but you
couldn't stop the President from going outside the system. But
then you simply declare that if you are outside the system, you
are on your own, Mr. President.
Senator Specter. When you talk about withholding funding,
somebody has suggested that if you take a look at this
President and seek to reach him in a specified way, it would be
a bill of attainder. Now, of course, a bill of attainder is a
criminal reference, but could you constitutionally really
direct a rifle shot at a President by withholding funding on a
collateral matter, or taking away his pension--there is some
talk about that--or taking away his Secret Service guard or
making him have an office on the tenth floor?
Mr. Schroeder. No, Mr. Chairman, I don't think at this
juncture the Congress can or should do any of those things. I
was talking about looking forward. You could set up a regime
not to attack the President's salary, but simply to withhold
from him the normal availability of Federal employees to vet
and work on extraordinary pardons, if you wanted to do that, so
that if he wanted to do something behind closed doors--
Senator Specter. Well, that would cutting off your nose to
spite your face if you cutoff the funding for people to vet
extraordinary pardons. We want more people to vet them on the
off chance that if he finds about them, he will do the right
thing.
Mr. Schroeder. Well, that would be the point of the first
part of having a system of transparent vetting that the Justice
Department had to employ whenever a pardon application came in
the door or whenever the President referred one. But as long as
you have got to deal with the fact that the President can act
autonomously if he or she wants to, it seems to me if you
placed those autonomous pardons outside the system, you would
really be raising the stakes of justification of a President.
Why, Mr. President, did you choose to go outside the system
and not avail yourself of the normal apparatus, would become, I
think, a quite salient question that might be very difficult
for a President to answer unless he had a very good reason, in
which case you would want him to do it.
Senator Specter. Professor Becker, I have ignored the red
light because there is only one other person who can follow my
lead, and that is Senator Sessions, and he is welcome to do so
when I finish.
Senator Sessions. Go ahead. I am very interested in your
questions.
Senator Specter. I was intrigued by our conversation last
week where you described your representation of President Ford,
counsel to him on the Nixon pardon, and how that played through
and how you made the suggestion as to your consulting with
President Nixon and raised the issue that even with a pardon,
there was still technically an opportunity for impeachment.
Would you recount that for the record?
Mr. Becker. Yes, sir. In August 1974, when President Nixon
resigned and President Ford was elevated to the presidency,
approximately 3 days later, after Mr. Nixon had arrived in
California, he called the Ford White House and spoke to
Alexander Haig, the Chief of Staff, and directed Mr. Haig to
send to Mr. Nixon in California all the records, papers and
tapes that had accumulated during the 5 years of the Nixon
presidency.
Those records, papers and tapes, particularly with
reference to the tapes, had rather important significance to
ongoing litigation and history. There were many people in the
White House who felt that President Ford should comply
immediately and send all of those documents and tapes to Mr.
Nixon. There were a few people who felt to the contrary and I
was one of those.
President Ford asked the Justice Department to give him an
opinion on the ownership issue of who owned those records,
papers and tapes accumulated by a President who is no longer in
office. And the Department of Justice ultimately gave President
Ford an opinion that said they belonged to Richard Nixon; they
are Richard Nixon's personal property.
That gave rise to even greater pressure on the President of
the United States, who had been President 2 weeks, two-and-a-
half weeks, from everyone in the White House, virtually, the
Nixon staff inherited by President Ford, urging him and urging
him to send those documents and tapes to San Clemente.
To his great, great credit and political courage, President
Ford refused to do so and insisted that those records would not
leave the possession of the Government of the United States. I
was asked to try to negotiate some disposition of those
records, papers and tapes with Mr. Nixon and his counsel, Jack
Miller.
Those conversations led into conversations respecting the
possibility of the issuance of a pardon to Mr. Nixon. I
reviewed the precedents on pardon for President Ford, advising
him of the scope of his Presidential power. One of the matters
that we were concerned with was the obvious question, Senator,
of pardon pre-indictment, pardon pre-conviction, and/or the
question of whether or not, even if a pardon were issued, if
the Senate chose to proceed with an impeachment trial of
President Nixon with a House vote--what effect would a pardon
have on the impeachment proceeding.
The impeachment proceeding, even though of a resigned
President, was technically possible. The impeachment of an
executive involves three things from a constitutional
standpoint--the loss of the office, which had already occurred
by virtue of the resignation; the loss of the emoluments, which
had not occurred by virtue of the resignation; and the loss of
the right to hold high office in the future, which had clearly
not occurred. So the Senate had a string of jurisdiction if
they wanted to retain back in 1974 the question of an
impeachment trial. Obviously, they did not do so.
Ultimately, as you know, Senator, a series of lengthy
negotiations occurred between myself and Mr. Nixon's counsel
and Mr. Nixon in California that resulted in Mr. Nixon turning
over the records, papers and tapes to the Government of the
United States which were later modified and codified by an act
of Congress.
Senator Specter. Did you discuss with President Nixon or
his counsel the technical possibility of an impeachment even
after the President left office by way of resignation?
Mr. Becker. I believe I discussed it with Jack Miller at
one time. In my conversation with President Nixon, we did not
discuss impeachment. We discussed other matters.
Senator Specter. Was Jack Miller surprised to hear that
that was a possibility?
Mr. Becker. My recollection was that Jack adopted my view
that it was a mere technical possibility and not likely in the
present atmosphere.
Senator Specter. Well, when you called my attention to it
last week, it surprised me that that was an option. Somebody
has said that the most effective remedy that we are talking
about is hitting the ex-president where it hurts, on his
legacy. I am not sure that that is incorrect, but I am not sure
that that has a whole lot of impact either.
One final question, Professor Becker, or maybe two final
questions, or maybe more. Did you play any role in President
Ford's decision to voluntarily testify before the House of
Representatives Judiciary Committee?
Mr. Becker. I am so happy you brought that up. There has
been so much conversation about--
Senator Specter. Professor Becker, I am glad someone is
finally happy about something.
Mr. Becker. I really want this record to be very clear that
following the grant of the pardon in September 1964 to
President Nixon by President Ford, there was a similar public
reaction that we are witnessing today and a similar
congressional reaction, in that the House of Representatives
Judiciary Committee met to investigate the pardon of Richard
Nixon by Gerald Ford.
The distinctions, I think, Senator, end there because back
in 1974, as soon as that committee was formed, President Ford
voluntarily appeared before that committee, sat in a chair like
I am sitting now before Members of the House of Representatives
and said, my name is Gerald Ford, I am President of the United
States, and I am here to answer any questions you have and I
will stay as long as you have questions.
Senator Specter. And he got some pretty pointed questions,
too, didn't he?
Mr. Becker. He did, sir, he did, and he answered every
single one of them.
Senator Specter. Do you think President Ford's decision to
testify voluntarily has any relevance to today, to what former
President Clinton ought to do?
Mr. Becker. I don't want to give advice to President
Clinton on what to do or what not to do, but I think President
Clinton ought to take note of President Ford's openness and
candor and frankness with the Congress and the American people
back in 1974.
Senator Specter. Senator Sessions, you have the final word.
Senator Sessions. I suppose President Ford felt that he
owed it to the American people that they understand fully why
he did what he did so that they could properly evaluate his
performance.
Mr. Becker. Senator Sessions, that is indeed accurate, but
even before President Ford appeared before the committee, he
had lengthy press conferences on the question of a grant of a
pardon. So the answer is absolutely yes.
Senator Sessions. Well, that was an act of a courage,
rightly or wrongly. He did what he thought was right and was
willing to answer to the American people and explain it. I
haven't seen that kind of reaction in former President Clinton.
Thank you, Mr. Chairman, for your leadership. I think it has
been important. Giving someone a pass for a criminal charge is
not to be treated lightly and we should consider these matters
in-depth.
Senator Specter. Well, that concludes our hearings. Thank
you very much, Professor Schroeder, Professor Gormley,
Professor Becker, and Mr. Quinn.
[Whereupon, at 1:28 p.m., the committee was adjourned.]
[Questions and Answers and Submissions for the Record
follow:]
[Additional material is being retained in the Committee
files.]
QUESTIONS AND ANSWERS
U.S. Department of Justice
Office of the Assistant Attorney General
Washington, D.C. 20530
April 10, 2001
The Hon. Orrin G. Hatch
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510
Dear Mr. Chairman:
This is to provide information responsive to Senator Feinstein's
questions at the Committee's hearing on February 14, 2001 regarding
clemency granted by President Clinton on January 20, 2001. We request
that this information, which pertains to the role of victims in the
clemency review process, be included in the hearing record.
The impact on victims of the crime for which the applicant seeks
executive clemency has long been a significant factor for the Office of
the Pardon Attorney in its investigation of clemency petitions and in
its preparation of the Department's advice to the President concerning
whether a pardon or commutation should be granted. Since 1997, the
portion of the United States Attorneys Manual that deals with the role
of the United States Attorney in clemency matters (Section 1-2.111,
USAM) has expressly noted the importance of providing information to
the Pardon Attorney regarding victim impact in clemency cases. The
practice of victim consultation in clemency cases has now been
standardized by a regulation (28 CFR Sec. 1.6(b)) which applies to
clemency petitions filed on or after September 28, 2000, but this
reflects more of a continuation of past practice than the commencement
of a new procedure.
In response to Senator Feinstein's request, we examined pardons and
commutations granted between December 1, 1999, and December 31, 2000.
Of the ten commutations granted in this period, none involved an
individual victim who suffered either physical or financial harm. Of
the 147 pardons granted during this period, only two involved physical
harm to persons or property. The victims were not consulted in these
two cases. In both instances, the defendant/pardon applicant had been
charged with a regulatory type offense, not an assault or property
destruction offense. In one case, restitution had been fully paid many
years ago, and the defendant had taken great pains not to hurt any
persons and to do only damage to the personal property of an individual
with whom he was having a personal feud. The other case involved merely
bad judgment that resulted in an accident, and neither drugs nor
alcohol were involved.
I hope that this information is helpful. Please do not hesitate to
contact me if you would like additional assistance regarding this
matter.
Sincerely,
Sheryl L. Walter
Acting Assistant Attorney General
Duquesne University
Pittsburgh, PA 15282
1March 2, 2001
Hon. Patrick Leahy
Senate Judiciary Committee
Dirksen Building Room 224
Washington, D.C. 20510
Dear Senator Leahy,
Thank you for the thoughtful question posed as a follow-up to the
Senate Judiciary Committee hearings held on February 14, 2001, relating
to the Presidential pardon power. Your question is: ``Short of a
constitutional amendment, what steps if any could Congress take to
reduce the potential for Presidential abuse of the pardon power? ''
This, in my view, hits at the heart of the issue initially posed by
Senator Specter in convening the hearings; namely, what can be done to
remedy actual or perceived abuses of the pardon power if we focus not
on the specific controversy involving former President Clinton, but
instead upon the broader goal of avoiding pardon-related problems in
the future? I have taken the liberty of discussing your question with
colleagues around the country, most of whom specialize in
Constitutional law. The following are my thoughts, with advance
apologies for not having more time to flush them out more thoroughly.
Let me begin by saying that, in speaking with Constitutional
scholars of all backgrounds--conservative, liberal, Republican and
Democrat--I found very few who were enthused about the concept of
amending the Constitution to limit the admittedly broad pardon powers
that the Framers reposed in the President. My previous testimony before
the Judiciary Committee, I believe, fairly summarizes the reasons that
Constitutional scholars are wary about any such amendment. Within the
existing Constitutional framework, however, Congress (as your question
suggests) can take certain steps to reduce the chance of abuse and/or
controversy with respect to future Presidential pardons. I will set
forth several possibilities that are within the realm of Constitutional
possibility.
A. Congressional Report
First, and least controversially, Congress can publish a
comprehensive Report at the conclusion of its hearings, setting forth
specific recommendations directed to the Justice Department (including
the Pardon Attorney's office) and the President, with respect to
patching obvious holes in the pardon process. A detailed Congressional
Report, to the extent that it identifies specific break-downs in the
process with respect the President Clinton's end-of-term pardons (as
well as problematic pardons granted by previous Presidents), can play a
vital role in shaping internal DOJ reforms. As well, an objective and
compelling Report will put future Presidents on notice that Congress
and the American public are watching attentively. Although Presidential
pardons have historically been subject only to perfunctory scrutiny
during prior political eras, modern 21 th century research
and communication technology permits a much more swift, searching and
intelligent inquiry of such Presidential action. The present
Congressional hearings, if they culminate in a neutral yet frank
assessment of potential weak-spots in the pardon mechanism, will
provide a useful starting point for healthy internal DOJ and White
House reforms.
B. Reporting Procedures
Second, Congress might consider enacting legislation (or
promulgating a non-binding resolution) that established certain non-
intrusive reporting requirements, by which the Department of Justice
would collect and publish certain information with respect to pardons
granted and denied. Procedures could be established both at the intake
phase, and at the concluding phase of the process after the President
has granted or denied each pardon or commutation.
It should first be made clear that any time Congress seeks to
impose restrictions or conditions directly on the President with
respect to the exercise of his or her pardon power, this raises serious
separation of powers problems. However, minimally intrusive procedures
could probably be constructed vis-a-vis the Department of Justice--
informational in nature--ensuring that Congress and the public are kept
apprised of pardons sought and granted.
Atthe intake stage, Congress might provide that any one interested
in applying for clemency should file a document with the Department of
Justice, accompanied by certain specific information. This basic
information might include the name of the individual seeking a pardon
or commutation; the crime(s) for which clemency is sought; current
location and status of the individual seeking the pardon etc. The
legislation or resolution might also provide that DOJ should provide a
periodic report to Congress with respect to all pardon applications
filed, thus causing the intake information to be transmitted to
Congress for informational purposes. A standing Committee could be
established in Congress to keep abreast of such data.
It should be stressed that, whatever procedures are set forth by
Congress, a President cannot be force to adhere to them. Indeed, the
President's pardon power is virtually absolute; he or she can pardon an
individual whether or not that person follows the procedures or applies
to DOJ at all. However, one would expect that--except in unusual
circumstances--a President would be inclined to channel pardon
applications through the requested intake procedure. Likewise, one
would expect that the Department of Justice would not take offense at
this minimally intrusive process, designed to provide Congress with
periodic information concerning the flow of pardon applications and
dispositions. Indeed, the above-described intake procedures could
simply be layered atop the existing, more extensive DOJ regulations
that already govern pardon applications. The Congressional intake
process--with its concomitant reporting feature--would guaranty a
regular flow of non-privileged information to the legislative branch.
This would put Congress in a better position to carry out its lawmaking
powers (as discussed below). It would also place Congress in a better
position to offer its own input to the President with respect to
requested pardons, and to exert political pressure upon the executive
branch if a specific pardon was deemed objectionable. The President, of
course, would be free to bypass the Congressionally-created application
process, if sensitive national security concerns or other exigencies
required that the potential pardon remain confidential. However, the
President would remain politically accountable for that decision.
Procedures could also be established to govern the exit phase of
the process. Congress might provide that, after clemency requests were
acted upon, the Department of Justice would supply Congress with
certain non-privileged information concerning those pardons that were
actually granted or denied. The information requested at this stage
would have to be carefully circumscribed, so that it did not intrude
upon the confidential relationship between the Attorney General and the
President, or the core functions of the executive branch. Thus, if it
wished to accomplish this goal in the least intrusive manner, Congress
might set forth a list of certain basic procedures that it deemed
desirable for the Department of Justice anal the President to follow
with respect to evaluating and acting upon pardon requests. Such
procedures might include: following the initial DOJ intake process
(described above); conducting an FBI check upon each individual
requesting a pardon; consulting with the office of the prosecuting
attorney in the jurisdiction(s) in which the individual was
investigated and/or convicted; providing a confidential written
recommendation to the President with respect to whether clemency is
appropriate; etc. After setting forth this checklist of desire
procedures, Congress might then provide that the Department of Justice
should publish a list of each pardon granted or denied, within a
specified time period after Presidential action was taken, indicating
whether the procedures had been followed. The Justice Department would
simply designate whether the pardon fell within Category A (i.e. those
pardons that followed the Congressionally recommended processes) or
Category B (those pardons that did not follow such processes). In this
fashion, both Congress and the American public could remain informed
with respect to the basic procedures (or lack thereof) that were
followed in applying for and receiving Presidential pardons.
It should be emphasized that any attempt by Congress to require the
Department of Justice or the President divulge their specific reasons
for granting or denying a pardon, or their recommendations with respect
to the same, would likely constitute an encroachment upon the domain of
the executive branch. Any legislation or resolution should limit itself
to seeking basic, non-privileged information concerning the pardon
process. Any legislation that directly or indirectly forced the
President or Justice Department to reveal the motivations or thought-
processes underlying specific pardon decisions, would most likely damn
itself to unconstitutionality.
C. Registration Requirement
Several other steps could be taken to eliminate potential abuse
with respect to the existing pardon process. First, Congress might
require that any non-lawyer agent or other person representing an
individual seeking a pardon or commutation, who receives remuneration
or any thing of value for such services, register with the Department
of Justice, much like a lobbyist. Actual remuneration received would,
in turn, have to be disclosed to the Internal Revenue Service. The
pardon power, because it is absolute, carries with it uniquely grave
possibilities for abuse. The most obvious of these is outright bribery.
In order to prevent abuses that may remain shielded even from the eyes
of the Justice Department and/or the President, Congress could require
non-lawyer agents, and other individuals representing clients in pardon
cases, to register and make public their representation. This would
throw open the process to the light of public scrutiny, rather than
fostering the appearance of secretive deal-making. (With respect to
lawyers representing clients in pardon requests, this situation poses
unique issues due to the attorney-client privilege and the applicable
Canons of Ethics. Congress might wish to avoid this treacherous
terrain.)
On the flip side, any individual seeking a pardon could be required
to disclose actual payments (or promises of payment) made to non-lawyer
agents or other persons for services rendered. Likewise, individuals
seeking a pardon could be required to disclose any contributions made
within a specified period to the President, his or her political party,
and/or any other entity that might directly or indirectly benefit the
President and/or Attorney General who are acting upon the pardon
request.
Finally, Congress might be able to require the President himself to
disclose, within a specified time period after granting a pardon, any
contributions received by a person receiving a pardon, or any financial
stake in any entity associated with such person. This would be no
different than the disclosures routinely required of Supreme Court
Justices and federal judges with respect to financial stakes in
entities appearing before them. Admittedly, this option raises unique
problems because it4 applies directly to the President, who possesses
plenary power in issuing pardons. Yet requiring; disclosure of actual
or potential conflicts of interest may be within acceptable
Constitutional boundaries, consistent with the Framers' general intent.
They never meant to countenance abuse of the pardon power. In general,
no public official is permitted to act based upon self-interest without
disclosing the existence of such an interest. Although it is true that
nothing in the Constitution would empower Congress to prohibit
Presidential pardons, even where based upon a conflict of interest
(short of actual bribery, which is a crime), Congress may be permitted
to require that the existence of an actual or potential conflict be
disclosed, so that the public and Congress can assess it on its merits.
This minor intrusion upon the President's sweeping pardon power may
flow naturally, just as it flows naturally that the granting of pardons
must be made part of the public record (ratbar than being kept
secretive).
Congress might derive its power to enact the above sorts of non-
intrusive measures from several sources within the Constitution. First,
Congress is empowered to enact federal criminal laws. It must
continuously assess existing federal criminal statutes, and adapt them
to changing times. A simple reporting requirement channeling regular
information to Congress concerning Presidential pardons (particularly
those clemency requests that are granted) would assist the legislature
in evaluating intelligently the efficacy of its criminal statutes. Many
pardons, throughout American history, have been granted to soften the
impact of criminal laws which Presidents deem unduly harsh. If Congress
is to be able to process this information, and amend its laws
intelligently to respond to flaws and gaps in the existing federal
criminal laws, allowing some modest appraisal of the ebb and flow of
Presidential pardon activity would assist that goal. Moreover, it seems
relatively non-intrusive.
A second basis for Congress's ability to take non-invasive action
in this area might flow from its impeachment power. The Constitution
vests sole power to impeach in the House of Representatives. Sole power
to try impeachments resides in the Senate. It is clear from the debates
concerning the Presidential pardon power, at the time of the
Constitution's ratification, that the Framers envisioned impeachment as
the only real deterrent to the improper exercise of the pardon power.
Pardons may be dispensed at any time throughout a President's tenure.
One powerful disincentive for inappropriate or irregular pardons, in
the Framers' minds, was that Congress would be in a position to impeach
a President in the case of an egregious abuse of that power. Thus,
allowing non-privileged information concerning Presidential pardons to
be channeled to Congress, would allow the legislative branch to stay
alert for potential abuses that might trigger the initiation of an
impeachment inquiry, in rare cases.
D. Eliminating Emoluments of Office
There is a final step that Congress might take with respect to
deterring inappropriate Presidential pardons. I have personal concerns
about the wisdom of this option, yet I set it forth in the interest of
open discussion. Congress would have the power to enact legislation, I
believe, which provided for the stripping of the President's emoluments
of office--pension, etc.--after he or she left office. This could be
triggered where the President was convicted of certain specified
crimes, one of which might be bribery flowing from the abuse of the
pardon power.
I recognize that some scholars--including Professor Benton Becker
who also testified at the Senate Judiciary Committee hearings--believe
that there is some hypothetical possibility of impeaching a President
after he or she leaves office. This, in effect, would strip the
President of the emoluments of office without the need for additional
legislation. However, I find the ``impeachment after leaving office''
argument to be unconvincing.
First, the text of the Constitution (Article I, Section 3, clause
7) specifically refers to the consequence of impeachment as ``removal
from office.'' This language strongly implies that impeachment is an
option only while the President occupies office. Second, many scholars
today (including myself) concur that a President cannot be subjected to
indictment or criminal prosecution while in office. Rather, impeachment
is the only remedy for a Chief Executive still serving his or her term.
Criminal prosecution must await removal from, or vacating of, the Oval
Office. This strongly ironies, conversely, that criminal prosecution is
the only recourse against a President afer he or she leaves office.
Impeachment and criminal prosecution seem to be mutually exclusive.
So the ``impeachment after leaving office'' approach, I believe,
provides no basis for stripping a President of benefits. Yet I do not
see any impediment to Congress enacting a statute that provides that a
former President (or any other federal official) shall forfeit his or
her pension and other emoluments of office after he or she leaves
service, if convicted of certain specifically-enumerated crimes. Of
course, I assume that Congress would not wish to include speeding
tickets or minor misdemeanors on this list. But Congress might choose
to include bribery among the specified offenses, whether that crime was
committed during the President's term in office (he cannot be tried and
convicted until after he leaves office) or after he has returned to
civilian life. In either a statute that took away the President's
benefits based upon criminal conduct, I believe, would rest safely
within the bounds of the Constitution.
I hasten to add, however, that such a law would not be legitimate
if applied retroactively. It could not, for instance, be applied to
strip President Clinton of the emoluments of his office. Rather, such a
statute could only apply to future Presidents to avoid constituting an
ex post facto law.
Of all of the options set forth in this correspondence, the last
proposal troubles me the most. I can foresee the potential for abuse if
certain political factions undertook a unified effort to hound a former
President after he or she left office, in order to gain a criminal
conviction and leave him or here effectively ruined and impecunious.
Moreover, would we strip a former President of Secret Service
protection, because he or she had committed a crime? This might only
invite attempts on the life of the former President and create security
nightmares. I see numerous drawbacks lurking beneath the surface of
such potential legislation. Nonetheless, I mention this option because
it is the only valid approach (in my view) that would allow Congress to
strip a former President of the emoluments of office, based upon an
abuse of the pardon power.
In the end, most of the proposals that I have set forth in this
letter require voluntary compliance by the Department of Justice and/or
the President. Given the strong powers of the President in the area of
granting pardons, any effort by Congress to gain information or
establish procedures--if pushed to the mat--would probably fail if the
executive branch chose to defy the legislation or resolution. Yet in
this twilight area of criminal justice, were Congress shares some power
with the executive branch to act responsibly, the Constitution may
leave room for interplay and cooperation between the two branches of
government (much like the War Powers Resolution--which is observed more
as a voluntary request than as a mandate). In the large run of
situations, reasonable Congressional requests in this twilight zone
would probably be honored.
I do not take a position, one way or another, with respect to any
of the specific proposals that I have outline above. Rather, I am
seeking to respond objectively to your question, by setting forth those
options that are within the realm of Constitutional possibility, should
Congress seek to examine alternatives short of amending the
Constitutional possibility, should Congress seek to examine
alternatives short of amending the Constitutional pardon power.
Although I feel rather strongly that a Constitutional amendment of the
Presidential pardon power is inadvisable, I feel less opposed to the
notion that Congress might take some reasonable, non-intrusive step to
make the pardon process work more smoothly. This would be in the best
interests of all three branches of government, it seems. Ultimately, it
would help restore public trust in the process.
Those are my views, in response to your excellent question. If I
can be of any further assistance to this Committee, please do not
hesitate to let me know.
Warm regards,
Ken Gormley
Professor of Law
SUBMISSIONS FOR THE RECORD
Statement of Margaret Colgate Love, Attorney, Washington, D.C.
My name is Margaret Love, and I am a lawyer in private practice in
Washington. From 1990 to 1997 I served as Pardon Attorney in the
Department of Justice, and in that capacity I had primary
responsibility for investigating and making recommendations to the
President on petitions for pardon and commutation of sentence. For two
years prior to that time I served on the personal staff of the Deputy
Attorney General, where I oversaw the operation of the Office of the
Pardon Attorney. I therefore had firsthand experience with the
administration of the pardon power during the administrations of
Presidents Bush and Clinton, and I am also familiar with pardoning
practices in previous administrations. Finally, I have studied and
written about the origins and rationale of the pardon power, and its
evolving function in the federal criminal justice system. I described
the recent atrophy of the pardon power in an article published last
spring. See ``Of Pardons, Politics, and Collar Buttons: Reflections on
the President's Duty to Be Merciful,'' 27 Fordham Urban L. Rev. 1483
(2000).
I do not intend to speak to the merits of any particular clemency
cases decided by President Clinton in his final weeks in office, nor
will I speculate about the way in which particular decisions were
reached. Rather, I will comment generally on the way President
Clinton's pardoning practices differed from the practices of his
predecessors, and offer some suggestions about how the administration
of the President's pardon power can in the future be reformed so that
it can once again play the role envisioned for it by the Framers of the
Constitution.
Historical Background
The Attorney General has been responsible for advising the
President on all applications for executive clemency since the middle
of the 19'' century. The Attorney General's central role in
administering the constitutional pardon power reflects and reinforces
the link that has historically existed between clemency and the day-to-
day operation of the federal criminal justice system. Until quite
recently, pardon could be counted on to assure a fair result in
individual cases, to signal the President's law enforcement priorities,
and to underscore the value of rehabilitation as a goal of the justice
system.
In 1898 the first clemency rules promulgated by President McKinley
directed all applicants for executive clemency to submit their
petitions to the Attorney General, and specified how such applications
would be processed within the Justice Department. Over the next hundred
years these clemency regulations would be reissued on several
occasions, but they remained remarkably similar in each new iteration,
providing perhaps our most venerable and consistent framework for
governmental decisionmaking.
Prior to President Clinton's final grants, the number of situations
in which pardon was granted without a prior Attorney General
investigation and recommendation pursuant to these regulations could be
counted on the fingers of one hand. (Notable exceptions are President
Ford's 1975 pardon of Richard Nixon, President Reagan's 1981 pardon of
two FBI officials being prosecuted for authorized illegal searches, and
President Bush's 1992 pardon of six Iran-Contra defendants.)
This is not to say that the President has always followed the
advice of his Attorney General, though the records of the Pardon
Attorney and my own experience indicate this was usually the case. But
the practice gave the President full access to the facts of a case, to
the law enforcement perspective on its merits, and to the counsel of a
key member of his Cabinet. And, because the Attorney General never
divulged the nature of his recommendation, the President could deflect
at least some criticism resulting from a particular grant by referring
to his reliance on the Attorney General's advice. Until recently, most
pardon warrants signed by the President contained a phrase alluding to
the Attorney General's recommendation.
This system worked efficiently and for the most part quietly,
resulting in over a hundred grants of pardon and commutation almost
every year between 1900 and 1980, most of them to ordinary individuals
convicted of garden variety crimes. Pardon warrants were issued four or
five times a year, and there was no particular increase in grants at
the end of an administration. While there was an occasional
controversial grant, the only pardon-related scandals during the 20'
century involved the rare situation that was handled outside of the
normal process (Nixon and Iran-Contra).
Within the White House, the business of reviewing and deciding
clemency cases forwarded from the Justice Department became, along with
judicial selection, part of the routine housekeeping business of the
White House Counsel's office. Until the Clinton administration, this
formal and regular process was scrupulously observed by the White
House, even after the instance of pardoning began to decline during the
administration of President Reagan.
Pardoning Practices During the Clinton Administration
Early in President Clinton's first term there were signs that he
might depart from the consistent practice of his predecessors of
relying on the Attorney General's advice in clemency matters. For
example, the White House undertook to respond itself to inquiries about
pardon matters, and many of its written responses included a phrase
suggesting that the President considered the Justice Department only
one of many potential sources of advice. Also, in contrast to past
administrations, the Clinton White House did not act on clemency cases
in a regular and timely fashion: no grants at all were issued in four
of President Clinton's first five years in office, and only a relative
handful of pardons were granted in later years, usually at Christmas.
The total number of cases decided did not keep pace with the
unprecedented number of new applications each year, so that the case
backlog reported by the Pardon Attorney grew steadily larger. When
President Clinton departed Washington on January 20, he left behind him
well over 3000 pending clemency cases, all of which are now of course
the responsibility of the Bush Administration.
The FALN grants in the summer of 1999 demonstrated President
Clinton's willingness to have the White House staff play a role in
pardon matters entirely independent of the Justice Department. The
Department had recommended against clemency for the FALN defendants in
December of 1996, while I was still in charge of the pardon program.
Later, after my departure, the Department apparently provided the
President some less definitive information about the cases. In the end,
the President decided to rely upon an investigation undertaken by his
White House Counsel in making those controversial grants. This
evidently deprived him not only of a full picture of the law
enforcement implications of the grants and the likely public reaction
to them, it also precluded his being able to allow a political
appointee with Cabinet status to take some responsibility for the
situation.
Several months before the end of President Clinton's second term,
reports began to circulate that there would be a large number of grants
at the end of his term. This by itself would be unusual, for pardoning
had in the past taken place regularly and consistently throughout the
President's term and was not reserved until its end. Even more unusual,
some pardon applicants and their lawyers were reportedly given to
understand, by Justice Department officials and others, that the White
House might be receptive to applications filed there directly, given
the short time period remaining before the end of the
administration.\1\ It was said that President Clinton did not want to
leave office having pardoned less generously than any President in
history, and only three weeks before leaving office he himself remarked
publicly on his frustration with the existing system of Justice
Department review.\2\
---------------------------------------------------------------------------
\1\ See, e.g., Kurt Eichenwald and Michael Moss, ``Rising Number
Sought Pardons in Last 2 Years,'' New York Times, January 29, 2001, at
A1.
\2\ See President Clinton's remarks on the occasion of the
appointment of Roger Gregory to the Court of Appeals for the Fourth
Circuit, December 27, 2000. President Clinton noted that many of those
to whom he had granted pardon just before Christmas ``were not people
with money or power or influence. And I wish I could do some more of
them--I'm going to try. I'm trying to get it out of the system that
exists, that existed before I got here, and I'm doing the best I can.''
---------------------------------------------------------------------------
While one might expect some slippage in the ordinary pardon process
at the end of an administration, it was clear to anyone familiar with
that process that something unprecedented was about to take place. Even
with this advance warning, however, I was surprised at how pardon
decisions were reportedly made in the final hours of his tenure, and
even more surprised at some of the grants.
Congressional Oversight of the Pardon Power
I do not believe that a constitutional amendment is necessary to
ensure responsible use of the pardon power, or to provide for
appropriate congressional oversight of its administration. Nor is it
desirable to restrict the President's discretion if pardon is to
continue to play the operational role in the justice system that it has
throughout our history. Future misuse of the power can best be avoided
if the President commits himself to the serious and regular exercise of
the power, and to reliance on a system for administering the power that
inspires public confidence.
A direct congressional role in granting pardons was rejected by the
Framers precisely on grounds that this would not be conducive to
accountability, consistency or efficiency. I leave it to others to
explain in more detail why the Framers thought that the President alone
should have the power and duty to bestow public mercy, and why of all
his powers they chose to make this one entirely independent of the
other branches. I would simply note that giving Congress a role in
approving or disapproving pardons is hardly likely to result in more or
better ones, and will do little to remove the power from the influence
of politics. Indeed, it is likely to exacerbate the situation.
At the same time, I believe that it is entirely appropriate for
Congress to take an interest both in particular pardon grants, and in
the President's pardoning practices. This is particularly important at
a time when the justice system is in transition, as ours now evidently
is with an escalating prison population and serious questions being
raised about the fairness of the federal sentencing guidelines system.
It is important for Congress to heed the messages pardons send, for a
justice system whose fairness depends upon the frequent exercise of the
pardon power is probably in need of legislative reform. If few pardons
are being issued, this may also suggest the desirability of
congressional inquiry, for it may portend (as recently evidenced)
postponement of the inevitable.
Moreover, congressional oversight can help the President assess how
efficiently his power is being administered, and whether it is serving
appropriate policy goals. For if the recent episode has taught us
anything, it is that the pardon power is a public trust, in whose fair
and regular exercise all citizens have an important stake.
I hope that the instant congressional inquiry will reveal that the
Justice Department's role in administering the pardon power has been
instrumental in keeping the power from being misused or otherwise
brought into disrepute, and that the President would be well-advised to
mend it, not end it. Many of the concerns raised in connection with the
final Clinton pardons are directly attributable to the President's
decision not to seek the advice of his Attorney General in connection
with making a decision on a number of those grants. More generally, the
irregularity and infrequency with which President Clinton acted on
pardon applications throughout his two terms was calculated to invite
public suspicion about the bona fides of even his most unexceptionable
grants. The Clinton administration's short-sighted and ill-advised
decision to abandon the longstanding regular system of Justice
Department review led directly to the reported free-for-all at the end
of his term, and at best an appearance of cronyism and impropriety.
President Clinton's pardoning practices not only resulted in
embarrassing grants, they also left the process by which the pardon
power has historically been administered in disrepute. President Bush
has his work cut out for him in deciding what to do now. If he wishes
to restore public confidence in the pardoning process, it will not do
for him simply to retool the existing bureaucracy. His more fundamental
and important task is to consider what role pardon should play in the
federal justice system, and then decide how best this can be
accomplished. Hopefully, the otherwise unfortunate circumstances of the
final Clinton pardons will offer President Bush an early opportunity to
do both.
Reexamination of the Role of Pardon in the Justice System
The critical first question is what official role (if any)
forgiveness should play in the federal criminal justice system.
Historically, the pardon power has been used to override the law to
achieve a just result in individual cases, and also to symbolize
official forgiveness. A majority of President Clinton's final grants
fall into this category under traditional Justice Department criteria.
Given President Bush's stated interested in rehabilitation and
redemption, pardon should find a welcome place in his panoply of
powers.
Pardon has also been used as a policy tool, to suggest the
desirability of particular changes in the law. For example, among the
last-minute beneficiaries of Clinton's pardons were 20 men and women
convicted of violating the federal drug laws, who walked out of prison
by executive fiat on the day Clinton left office. Each of the twenty
had served at least six years of sentences ranging from 10 to 85 years,
and each had been only peripherally involved in the drug conspiracies
for which they had been held accountable. Several of those released had
been teenage couriers for crack gangs, and several had been victims of
domestic abuse. In some of the cases the sentencing judge and
prosecutor had recommended in favor of clemency, the only means of mid-
term sentence reduction currently available in the federal justice
system. These 20 lucky drug offenders were in many respects typical of
the hundreds of inmates serving long mandatory sentences for whom
executive clemency holds out the only hope of early release. It would
be a shame if the message in these 20 grants were lost in the uproar
over the more controversial and irregular grants.
As another example of the way pardons deliver a powerful message to
the justice system, many of the beneficiaries of the January 20 grants
were seeking restoration of basic legal rights of citizenship that they
had lost as a consequence of their conviction. Most had long since
served their sentences and were genuinely remorseful, and had patiently
waited many years for an official indication that they had paid their
debt to society. Few had lawyers, and even fewer had influential
friends. Many had encountered legal obstacles to their rehabilitation
such as denial of employment and benefits and basic civil rights. There
is a legitimate question whether presidential action should be
necessary to give relief from these civil disabilities, or whether
Congress should not review the laws that so impede an offender's
reentry into the community.
Shoring Up the Administration of the Pardon Power
Assuming the desirability of a role for pardon in the justice
system, it remains to be decided how the President's pardon power can
best be administered to ensure its freedom from suspicion and
manipulation. As previously described, the President has historically
relied on the advice of his Attorney General in exercising the power,
which has for the most part kept it free from political interference
and public suspicion, allowing it to play a constructive operational
and symbolic role.
Recently, in the absence of guidance from the President, the pardon
program has lost its independence and integrity within the Department
of Justice. Over the past twenty years it has gradually come to reflect
the unforgiving culture of federal prosecutors, and now serves
primarily as a conduit for their views. This too seems to have
contributed to the January 20 debacle, for it appears that the
President may have been dissatisfied with the general approach to
clemency cases being taken by his own Justice Department, and in the
end simply worked around it using his own White House staff.
In addition, the rising number of federal criminal convictions, the
severity of the consequences of conviction, and the absence of
alternative relief mechanisms, have combined to create an overwhelming
demand for pardon and a crushing workload for the small staff in the
Justice Department that is responsible for administering the pardon
program. The unprecedented increase in case filings during President
Clinton's two terms, coupled with uncertainty about standards for
making decisions, has evidently made it impossible for the Department
of Justice to maintain even the semblance of fairness and regularity in
handling pardon cases. (Whether responsible Justice officials could
have played a more helpful role in coordinating and facilitating the
pardon process is one of the yet-unsolved mysteries of Clinton's final
days.)
The basic structure and staffing of the Department's pardon program
has not changed very much in almost a century. If the role of the
pardon power is to be reassessed, so too should the system by which it
is administered. If I had just one recommendation to make to President
Bush, it would be that he direct his Attorney General to resume a
personal responsibility for providing advice in pardon matters. As a
corollary, I would suggest that the President appoint someone to assist
the Attorney General in clemency matters whose courage and compassion
are unquestioned, whose independence within the Department is assured,
and who can be held politically accountable.
If I could make a second recommendation, I would urge the President
not to make it so hard for people to obtain his mercy. Post-sentence
pardons should be available to all who are truly remorseful, and who
have made a genuine effort to pay their debt to society. As to
commutation cases, some fair and systematic way should be found to
identify and give relief to individuals serving prison sentences whose
length is simply disproportionate to the crime.
Looking Ahead
The message to our new President from the final Clinton pardon
grants should be clear: it is time for a thorough-going rethinking of
the role of pardon in the federal justice system.
This will provide an occasion to review current laws and policies
on the consequences of conviction, to determine what reforms may be
necessary to lessen the operational need for pardon, and to spell out
how compassionate conservatism will work in this most logical venue.
This review should involve members of Congress and the judiciary, for
their role in the making and interpretation of the law has important
implications for the exercise of the pardon power. It should also
involve representatives of the media, who have a central role in
controlling pardon's exercise.
The message to Congress should also be clear: Rather than seek to
restrict and control the President's pardon power, through a
constitutional amendment or otherwise, Congress should encourage its
generous exercise as a discretionary complement to the legal system,
and work to ensure that the laws do not have to depend for their fair
operation upon a device that by rights should serve only as a ``fail
safe.''
I predict that we will look back on Bill Clinton's final pardons as
his single most important contribution to the federal criminal justice
system. For thirty years politicians and bureaucrats alike have been
for more interested in feeding the front end of the justice system
through enacting more laws, hiring more prosecutors, and building more
prisons, than in helping people avoid becoming enmeshed in the system
in the first place, creating opportunities for them to earn their way
to freedom, or finding ways to encourage their reintegration in to the
community. My hope is that, with Bill Clinton's pardons in mind,
President Bush and Congress together will be willing to reorder these
priorities.
Office of The District Attorney
Anniston, Alabama 36201
February 9, 2001
Honorable Jeff Sessions
United States Senate
495 Russell Senate Building
Washington, DC 20510
Dear Senator Sessions
On his last day in office. President Clinton commuted the death
sentence of David Ronald Chandler who had been convicted in United
States District Court for the Northern District of Alabama in 1991 for
murder in the furtherance of a continuing criminal enterprise. The
Supreme Court of the United States was soon due to consider this case
further when the commutation was granted. I implored the President not
to intervene. While Chandler's attorneys and supporters, many in the
media, have viciously attacked the integrity of those investigators and
prosecutors who diligently pursued Chandler. the truth is that the
President commuted a death sentence that was appropriate and fair under
the circumstances of the case. My understanding is that the former
Attorney General concurred. at least tacitly, in the President's
actions. It is disheartening that both of these officials saw fit to
turn their backs on their line personnel who had done nothing except
vigorously enforce the law as written.
The evidence at trial showed that Chandler was the controlling
partner in a large marijuana, rowing, transporting and trafficking
operation between 1987 and 1990. He and his partners cultivated and
harvested thousands of marijuana plants in eastern Alabama and western
Georgia, and bought and sold large quantities of marijuana for
distribution. Testimony showed Chandler had attempted to use deadly
physical force against a Georgia Bureau of Investigation officer upon a
previous arrest, and that Chandler had said that ``if he got set up
again, he'd have to kill somebody.''
Persons with intimate knowledge of Chandler's operation testified
that Chandler had solicited them to kill an informant and the local
police chief who had been instrumental in bringing Chandler's
activities to the knowledge of state and federal law enforcement
officials. According to these witnesses, Chandler offered money to
secure these deaths, even providing a weapon for such use Martin
Shuler, the deceased victim of Chandler's crime, informed local law
enforcement in March, 1990 that Chandler was having marijuana
distributed from the home of Shulei s ex-wife, Donna Shuler. A search
warrant revealed Shuler's allegations true and Ms Shuler was arrested
for her possession of one kilogram of marijuana. The evidence at trial
indicated Chandler learned of Martin Shuler's informant activities
during the legal proceedings concerning Ms Shuler's arrest. Chandler,
according to one witness, solicited him to kill Shuler and the local
police chief because of their intruding into his marijuana distribution
process.
Charles Ray Jarrell, Chandler's brother-in-law who worked with
Chandler in the growing and distribution of the marijuana, testified
Chandler offered him money on several occasions to ``take care'' of
Martin Shuler. Jarrell further testified that on the day or Shuler's
death, Chandler told him Shuler was ``going to cause us a lot of
trouble'' and that Jarrell ``better go on and get rid of him.''
Chandler told him he still had the money available to pay Jarrell if he
would do as lie was asked. Jarrell testified that, using a gun given to
him by Chandler, he shot Shuler while they visited a local lake, that
he and Chandler buried the body in a remote mountain area, and hid
Shuler's car. Jarrell later led authorities to the gravesite. An
autopsy was performed that revealed Shuler died from a gunshot wound to
the back of the head.
Later, in August and September, 1990, Chandler made threats with
respect to two other individuals who, according to testimony, he
believed were stealing his marijuana from where it was being grown or
stored. Neither of those individuals have been seen after early
September 1990. Their families have never been allowed to bury their
loved ones, yet Chandler has been able to sway the President of the
United States that his life should be spared.
Chandler's attorneys have painted their client as a ``Robin Hood''
type character and his prosecutors has suborners of perjury and liars
themselves. They offer Jarrell's recantation of his trial testimony as
incontrovertible evidence of Chandler's innocence when, in actuality,
it is only one brother-in-law doing his best to have another removed
from a death row cell he helped build After 23 years of prosecuting
criminals, I know there are no winners or losers in cases such as
these. Only justice should win. In this case, justice is mysteriously
absent.
Sincerely,
Joseph D. Hubbard
District Attorney
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Statement of John R. Stanish, Hammond, IN
I am happy to be invited to testify before the Senate Judiciary
Committee on the matter of presidential pardons.
Personal Background
I have practiced law in Hammond, IN for the past 30 years, except
for the period from 1977 through 1980 when I served as Pardon Attorney
in the administration of President Jimmy Carter. During that time I
served under the two Carter Attorneys General, Griffin Bell and
Benjamin Civiletti. Since leaving office, I have from time to time
represented clients in presidential clemency matters.
Background on the Pardon Process
Article two, section two, clause one of the Constitution provides
in part:
``The President . . .shall have the power to grant reprieves and
pardons for offenses against the United States. . .''
This language has uniformly been interpreted to grant the President
unlimited power in matters of clemency. The reason for this
interpretation is that the Constitution grants very few specific powers
to the President. Although, we would all agree that the presidency has
awesome and broad powers, almost all of these powers come from implied
and not specific grants of power in the Constitution. The few examples
of specific grants of power, including the clemency power, are
therefore generally interpreted to be very broad in nature. I emphasize
this because the President's clemency powers cannot be restricted by
anyone, including Congress.
Historically, Presidents have looked to the Attorney General for
advice concerning clemency. This process was formalized when a Pardon
Clerk and then a Pardon Attorney was provided for in the Department of
Justice. The Pardon Attorney, on the staff of the Attorney General,
assists in clemency requests and prepares letters or reports from the
Attorney General to the President on proposed clemency.
Under President Carter, the Justice Department was reorganized in
to two broad operating areas, criminal and non-criminal, and an
Associate Attorney General position was created as the third ranking
Justice Department official. Since then, the Associate Attorney General
oversees either the criminal or non-criminal functions and the second
highest official, the Deputy Attorney General, oversees the other area.
The Pardon Attorney reports to the official overseeing the criminal
area and recommendations for or against clemency are prepared for the
signature of the Deputy Attorney General or the Associate Attorney
General, whichever is appropriate. The Attorney General is now out of
the direct clemency process, although he or she can and does get
involved at his or her discretion. In the Clinton presidency, the
Deputy Attorney General supervised the Pardon Attorney.
I believe that either during the Franklin Roosevelt or Harry Truman
presidencies, formal rules were adopted jointly by the President and
the Attorney General concerning clemency. These rules, subject to
changes from time to time, are still in effect under 26 CFR 1.1 et seq.
The rules are considered advisory only and create no right in any
person to clemency nor are they construed so as to create procedural
rights in pardon applicants as to how clemency is considered. The rules
do not limit the President in any manner. In other words, any President
can ignore these rules and consider clemency outside of the process
contemplated by the rules. This is certainly what appears to have
happened with the approximately two dozen grants of clemency at the end
of President Clinton's tenure.
Usual Clemency Process
In the normal course of things, anyone seeking clemency follows the
procedures established at 26 CFR 1.1 et seq. by applying for clemency
with the Pardon Attorney. If the request is for commutation of
sentence, the Pardon Attorney would direct the Bureau of Prisons to
furnish prison records, which should include the pre-sentence report
and other details of the offense. If those records and the clemency
petition appear to have any merit, the views of the current U. S.
Attorney for the district of conviction, the sentencing judge and the
Director of Prisons are solicited. If the matter involved drugs,
weapons, taxes, etc., the views of the head of the DEA, ATF, IRS, etc.
would also be sought. If after all of these have been reviewed the
Pardon Attorney continues to believe that clemency should be granted,
he would prepare a Letter of Advice to the President detailing the
matter and suggesting the form of commutation to be granted. This
letter would be signed by the Deputy Attorney General (or the Associate
Attorney General if that official is overseeing criminal matters) and
forwarded on to the White House Counsel. If the Pardon Attorney feels
that clemency should not be granted, he would prepare a Report of
Denial suggesting that clemency should not be given. This report is
also prepared for the signature of the Deputy or Associate Attorney
General and forwarded on to the White House Counsel. During my tenure
as President Carter's Pardon Attorney, I sought to have authority given
to the Pardon Attorney to simply issue denial reports without bothering
higher officials if the case were clearly unmeritorious. This procedure
may or may not still be in effect today.
If the request were one for pardon, the application should also be
filed with the Pardon Attorney, who would make a preliminary decision
as to whether the case may have merit. If it is determined positively,
normal procedures require that he secure a copy of the pre-sentence
report from the sentencing district (because this provides excellent
background on the case). After that is received and assuming the case
may still appear to have merit, the Pardon Attorney would direct the
FBI to conduct a full-field background investigation of the applicant.
This investigation is handled by the same unit within the FBI that
conducts background investigations for presidential appointees. The
investigation is quite thorough. The FBI looks into credit history for
the possible financial irresponsibility, contacts all present and most
past employers or business associates, checks into all neighborhoods of
current and past residence, checks on the possibility of current or
past other criminal activity, drug or alcohol abuse, attitudes
regarding racial, sexual or religious bias, interviews character
references suggested by the pardon applicant, and generally is free to
delve into anything the bureau feels is appropriate. The character
references, past and present neighbors, and past and present employers
and business associates are also asked to furnish names of other
persons familiar with the pardon applicant. This whole process is
lengthy and designed to elicit adverse information, if any exists. My
experience with the FBI background process is that it is very effective
in ferreting out negative matters if any are present.
Assuming the FBI background investigation comes back free of any
adverse matters, sufficient time has passed since the conviction or
release from imprisonment, and the case otherwise looks meritorious,
the Pardon Attorney solicits the views of the sentencing judge, the
current United States Attorney of the district of conviction, and other
relevant officials such as the head of the DEA, ATF, IRS, etc. After
all of these officials respond, the Pardon Attorney decides whether the
pardon should be granted or denied and prepares a Letter of Advice or
Report of Denial as set out above in the paragraph on commutations. The
matter goes to the Deputy or Associate Attorney General for signature.
The White House Counsel receives the communication on behalf of the
President and reviews it. If the Counsel agrees with the Department's
recommendation, the Pardon Attorney is so advised. If clemency is to be
granted, the individual petitioner is included in the next master grant
of clemency. (A master grant is nothing more than a grouping of
favorable clemency cases so that the President signs his name once
rather than many individual times.) If clemency is to be denied, the
Pardon Attorney notifies the petitioner of the adverse action.
It should be noted that in almost all cases the recommendation of
the Pardon Attorney is accepted by the Deputy or Associate Attorney
General. Also, in almost all cases, the recommendation of the
Department of Justice is agreed to by the White House Counsel. In a few
cases these higher officials will disagree with the proposed decision.
In the Carter administration, if the Justice superior disagreed with
the Pardon Attorney, he would advise the Pardon Attorney of his reasons
and invite the Pardon Attorney to rewrite the recommendation to the
President or argue the matter further until an agreement was reached.
From my personal experience, I can say that if the Pardon Attorney
believed strongly in a proposed outcome, he could prevail on his
superior at the Justice Department. Rarely, would the Pardon Attorney
be ordered to change his recommendation. I can think of maybe two
instances, each involving genuine differences of opinion, where I was
simply told to change the Department's recommendation to the President.
On the occasions when the White House Counsel disagreed with the
Letter of Advice or Report of Denial from the Justice Department, I
never saw an instance where the Department's recommendation was simply
disregarded. Instead, on those few occasions, the White House Counsel
set out its views and asked the Department to consider them. Some times
the Department changed its recommendation after considering the
Counsel's position and on others, the Department stayed with its
original recommendation, which became dispositive of the case. I never
experienced a situation of where the White House Counsel simply
overruled the recommendation of the Department of Justice.
Alternative Clemency Process
In coming here today, I was asked to discuss the ``alternative
clemency process,'' meaning one where the request bypassed the Justice
Department. In my opinion, there is no ``alternative clemency
process.'' During the Carter presidency, I can think of one instance of
a clemency request going to the White House rather than the Department
of Justice. President Carter received a personal letter from the
President of the Sudan. In that case, President Carter put a ``buck
slip'' on the letter and forwarded it to the Attorney General for
proper handling. The matter was passed along to me, reviewed as if it
were a petition for clemency, and denied. The Pardon Attorney prepared
a letter for the President's signature to the Sudanese President
advising of the disposition of the matter.
On rare occasions, Presidents will grant clemency without a
petition to the Pardon Attorney. In recent decades, the only other
instances that come to mind are:
the Clinton clemencies of on or about January 20, 2001;
the senior Bush pardon of the Iran-Contra officials at the end of his
presidency;
the Reagan pardon of senior FBI officials in 1981;
several clemency proclamations by Presidents Carter and Ford for
military or draft offenses relating to the Vietnam War;
and the Ford pardon of President Nixon.
Other than the Clinton clemencies, the others could easily be
argued to be of great personal interest to the President for very
proper political reasons such as bringing closure to the country after
the Vietnam War or the Watergate era or believing that it was in the
best interest of the nation to not see high government officials
prosecuted.
Clinton Clemencies
The grants of clemency given by President Clinton on or about his
last day in office included about two dozen cases, which I understand
were never considered by the Justice Department. For the most part,
these cases were not of the nature described in the previous paragraph
and should not be considered to have been given for highly principled,
legitimate political reasons. (Although, I can see how President
Clinton could have granted clemency to Susan McDougal on the basis that
he had strong feelings that the various investigations against him were
politically motivated and caused great and unfair harm to someone who
happened to be his associate. Therefore, it could be argued that Ms.
McDougal should be forgiven so as to put this whole matter behind her
and the country, particularly in light of the fact that the President
had concluded his problems with the Independent Counsel.)
While I can see no good reason for bypassing the Justice Department
on these cases, the President acted legally and within the power
granted him in the Constitution. I cannot see how any of the pardons
can be set aside or otherwise challenged.
The granting of this group of pardons is highly unusual and
unprecedented in recent times. I know of no group of pardons granted by
recent presidents that were similarly granted. I am struck by one
question and that is `` Why did the White House Counsel's office allow
these pardons to proceed? '' As I understand the role of the Counsel's
office it is, among other things, to protect the President from doing
things that are illegal or embarrassing. Here, the Counsel's office had
to be aware of the efforts to get these pardons granted. It should have
advised the President that established procedures would be violated if
the pardons were granted and place him at great risk of embarrassment
or mistake. If the Counsel did so advise the President and this advice
were ignored, then I believe the Counsel may be without fault. If it
did not, then the President suffered from a complete failure in the
Counsel's office.
If you were to look at specific cases of the Rich and Braswell
pardons, both would have been stopped by the Pardon Attorney if he had
been aware of them. In the Rich case, I can assure you that the Pardon
Attorney would have summarily rejected the request on the basis that
clemency is never considered for a fugitive. The reason should be
obvious If you consider clemency for a fugitive you undermine the
authority of law enforcement agencies, prosecutors and the courts. If
Braswell had been considered by the Pardon Attorney, it would have been
referred to the FBI, which would have processed Mr. Braswell through
its system. That would have shown the pending criminal investigation
and resulted in the case being rejected. I know of no other pardons
granted to a fugitive or to someone under an active Federal criminal
investigation.
The Future of the Pardon Power
Unless a Constitutional amendment is adopted, there is little that
can be done to prevent the President from exercising clemency in any
manner he sees fit. If I may engage in hyperbole, the President could
literally sign a document today that would pardon every Federal inmate
and I cannot see how such an act could be set aside. The question
becomes whether the nation wants to go through the effort of amending
the Constitution. If an amendment is the decided route, I would take
the opportunity to consider how clemency has been handled in the
various states, none of which vests the same broad power in a governor
as is vested in the President. The best of the states' procedures could
be written into the Constitutional amendment.
I have substantial doubts that Congress can do much by legislation
to restrain the President's pardon power.
I want to thank the Committee for inviting me to express my views
on these matters.
John R. Stanish
Attorney at Law
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
I am pleased that we are holding this hearing today to review
pardons issued by President Clinton in the closing hours of his
presidency.
The pardon that is the most controversial and hardest to understand
is for Marc Rich. In 1983, Mr. Rich was charged in what at the time was
the largest tax fraud case in U.S. history. He was indicted for
violating the Iranian oil embargo and for evading $48 million in taxes.
He then fled the country and renounced his citizenship. He has lived as
a fugitive from justice ever since.
In the case of Mr. Rich there was no need to consider leniency.
There had not even been a conviction. Instead, he fled the country to
avoid having to answer the charges. Giving a pardon to a fugitive sets
a terrible example. Fugitives are already a serious problem in our
country, and this action will encourage others to evade the law.
This pardon request did not follow the normal procedures through
the Justice Department. Moreover, the President did not even consult
with the prosecutors who brought the charges and fought diligently to
try to bring Mr. Rich and his associate to justice. No good explanation
has been given for this pardon, and it is appropriate for the Congress
to try to find out why it was done.
As a result of this outrageous action by the President, some have
called for constitutional amendments to try to prevent this from
happening again. We should always be very reluctant to amend the
Constitution, and this area is no exception. I am strongly opposed to
President Clinton's actions, but I think we should consider this matter
very carefully before we act to limit the power of future Presidents
based on President Clinton's conduct. There have been many
controversial pardons in American history, but the President's very
broad pardon authority under Article II has never changed.
The pardon power is an important component of the powers reserved
to the Executive in the Constitution. When used sparingly, it is an
appropriate control on the criminal justice system.
Last year, many of us on the Committee proposed statutory reforms
for the pardon process, which were directed at the Pardon Attorney's
recommendations to the President. This was done in response to an
earlier unwise decision by President Clinton to grant clemency to
members of a terrorist organization called the F.A.L.N. The final
pardons by President Clinton should create new interest in statutory
reforms.
The pardon power is a high responsibility that should not be
abused. I hope that future Presidents will show greater respect for
their constitutional authority.