[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]


 
  USE AND MISUSE OF PRESIDENTIAL CLEMENCY POWER FOR EXECUTIVE BRANCH 
                               OFFICIALS

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 11, 2007

                               __________

                           Serial No. 110-57

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______
                                     
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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
LUIS V. GUTIERREZ, Illinois          STEVE KING, Iowa
BRAD SHERMAN, California             TOM FEENEY, Florida
TAMMY BALDWIN, Wisconsin             TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York          LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California           JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                             JULY 11, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     3

                               WITNESSES

The Honorable Joseph C. Wilson, IV, former Ambassador
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6
Mr. Douglas A. Berman, Professor, Moritz College of Law, The Ohio 
  State University
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Mr. Roger C. Adams, Office of the Pardon Attorney, U.S. 
  Department of Justice
  Oral Testimony.................................................    30
  Prepared Statement.............................................    33
Mr. Thomas Cochran, Assistant Federal Public Defender, Middle 
  District of North Carolina
  Oral Testimony.................................................    44
  Prepared Statement.............................................    47
Mr. David Rivkin, Baker & Hostetler LLP
  Oral Testimony.................................................    56
  Prepared Statement.............................................    58

                                APPENDIX
               Material Submitted for the Hearing Record

List of Pardons Granted by President George W. Bush and Pardons 
  Granted by President William Clinton, submitted by the 
  Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.   116
Article from The Washington Post, dated March 7, 2007, submitted 
  by the Honorable Chris Cannon, a Representative in Congress 
  from the State of Utah, and Member, Committee on the Judiciary.   166
Excerpts from Minority Views, Report on Prewar Intelligence 
  Assessments About Postwar Iraq, Together With Additional Views, 
  Senate Select Committee On Intelligence, 110th Congress, 
  submitted by the Honorable Chris Cannon, a Representative in 
  Congress from the State of Utah, and Member, Committee on the 
  Judiciary......................................................   168
Letter from the Honorable John Conyers, Jr., a Representative in 
  Congress, from the State of Michigan, and Chairman, Committee 
  on the Judiciary, to President George W. Bush, dated July 6, 
  2007...........................................................   190
Letter from the Honorable John Conyers, Jr., a Representative in 
  Congress, from the State of Michigan, and Chairman, Committee 
  on the Judiciary, to President George W. Bush, dated July 10, 
  2007...........................................................   192
Letter from Fred Fielding, White House Counsel, to the Honorable 
  John Conyers, Jr., a Representative in Congress, from the State 
  of Michigan, and Chairman, Committee on the Judiciary, dated 
  July 11, 2007..................................................   193


  USE AND MISUSE OF PRESIDENTIAL CLEMENCY POWER FOR EXECUTIVE BRANCH 
                               OFFICIALS

                              ----------                              


                        WEDNESDAY, JULY 11, 2007

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 12:30 p.m., in Room 
2138, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Nadler, Scott, Lofgren, 
Jackson Lee, Delahunt, Wexler, Cohen, Weiner, Wasserman 
Schultz, Ellison, Smith, Sensenbrenner, Coble, Gallegly, 
Chabot, Lungren, Cannon, Keller, Issa, Pence, Forbes, King, 
Feeney, Franks, Gohmert, and Jordan.
    Staff Present: Perry Apelbaum, Staff Director and Chief 
Counsel; Mark Dubester, Majority Counsel; Caroline Lynch, 
Minority Counsel; Allison Beach, Minority Counsel; Sean 
McLaughlin, Deputy Chief Minority Counsel/Staff Director; 
Crystal Jezierski, Minority Counsel; and Matt Morgan, Staff 
Assistant.
    Mr. Conyers. The Committee will come to order. I welcome my 
colleagues, our witnesses, and our guests here in the Judiciary 
hearing room. We are gathered here today on the subject of the 
hearing on the use and misuse of President's commutation power. 
Without objection, the Chair is authorized to declare a recess.
    And I begin with the observation that there are few 
principles in our society more important than equal justice 
under law. The idea that no man or woman is above the law is 
firmly embedded in our Nation's founding documents and 
underlies the entirety of the criminal justice system.
    When clemency is granted outside the normal pardon system, 
and particularly when it is issued to members of the 
President's own Administration, that fundamental concept is 
called into question.
    I respect the President's authority under the Constitution 
to grant clemency. At the same time, I would hope that the 
White House would acknowledge our role as a co-equal branch of 
government with not only the right but the duty to conduct 
oversight.
    Today as part of our oversight responsibility I hope we can 
obtain answers to several important questions surrounding the 
President's recent decision to commute the prison sentence of 
Mr. Libby: Was the grant of clemency here consistent with other 
pardons and commutations by this President? Were the 
prosecutor, the pardon attorney or other relevant officials in 
the Department of Justice consulted before the commutation was 
issued? Was the process to consider the commutation fair, 
thorough and available to similarly situated individuals? Was 
the net result of the commutation consistent with the Nation's 
sentencing guidelines?
    Looking at his initial public statement, the President 
evidently believed that the 30-month prison sentence issued by 
Judge Walton was too harsh but felt some punishment was 
appropriate; in this case, a fine and probation. Is there any 
construction by which this ultimate sentence is consistent with 
sentencing guidelines? If not, do we need to reconsider the 
guidelines so that whatever factor the President identified can 
be taken into account in future sentencing decisions for 
others? What impact will the President's decision have on 
Congress' ability to learn how Ms. Plame came to be outed from 
the CIA in 2003? Was her outing the inadvertent result of a 
slip of the tongue by a government bureaucrat or was it part of 
a larger conspiracy to besmirch Ms. Plame and her husband 
Ambassador Wilson, who had written an op ed criticizing the 
Administration? Does the fact that Mr. Libby has received a 
commuted sentence rather than a pardon inhibit Congress' 
ability to learn the truth?
    Some have sought to divert our efforts to ascertain the 
truth in this matter by focusing on unrelated issues or by 
muddying the facts of the Libby investigation. For example, it 
has been asserted that criminal charges should never have been 
brought against Mr. Libby or that there was never an underlying 
crime. But of course this belies the fact that Mr. Fitzgerald's 
investigation found that several individuals, including Mr. 
Libby, leaked classified information not just to Mr. Novak but 
to the New York Times, Time Magazine, and other publications.
    Some have tried to turn our attention to the events of some 
7 years ago when President Clinton pardoned Mark Rich. I did 
not support that action. But whatever its demerits were, it was 
investigated in four separate hearings in the Senate and the 
House and it did not involve someone who worked in the White 
House and who could potentially implicate others there, as may 
be or appears to be the case in this instance.
    I close by noting that if we are truly to get to the bottom 
of the controversies surrounding the President's commutation of 
Mr. Libby's present sentence, we would need to hear from two 
additional parties. The first is Special Counsel Patrick 
Fitzgerald. He declined our invitation to participate today, 
but I hope that at some point he will offer us his perspective 
and that he does so when it is still timely and relevant.
    The second party of course is the White House. I have 
written President Bush asking him not to assert executive 
privilege in this matter, just as President Clinton did not 
assert the privilege 7 years ago. I have not received a 
response as of yet, but certainly obtaining the testimony of 
those directly involved in the commutation would be useful and 
informative to this Committee. The principle of equal justice 
under law demands no less.
    I am pleased now to recognize the Ranking Member of the 
House Judiciary Committee, the gentleman from Texas, Mr. Lamar 
Smith.
    Mr. Smith. Thank you, Mr. Chairman. A wise American once 
said, quote, ``we are a Nation of laws, and if any matter is 
abundantly clear by our Constitution, it is that the President 
has the sole and unitary power to grant clemency,'' end quote.
    I agree with that statement, which was made by Chairman 
Conyers about President Clinton's grant of clemency to 16 
members of the FALN organization. The Constitution does give 
the President the authority to grant clemency. Congress cannot 
restrict this power, and yet here we are spending time and 
resources that would be better used focusing on the real needs 
of the American people, protecting our country from terrorist 
attacks, such as those recently attempted at Ft. Dix, New 
Jersey and JFK Airport in New York, securing our borders and 
reducing illegal immigration, investigating gang violence and 
violent crime, which is on the rise, and protecting our 
children from sexual predators on the Internet.
    Each of these issues was a priority for this Committee 
during the last Congress and there are pending bills within the 
Judiciary Committee's jurisdiction on these subjects now. It is 
time to get back to the people's business. But here we go again 
and we will spend half a day on the President's decision to 
commute the 30-month prison sentence of one person, an 
individual with an outstanding lifetime reputation.
    To put this in perspective, President Clinton admitted to 
perjury, was not sentenced to jail, and paid no fine. Sandy 
Berger, Mr. Clinton's National Security Adviser, did not go to 
jail for lying to investigators about stealing classified 
documents from the National Archives. President Clinton granted 
a total of 457 pardons and commutations compared to only 117 to 
date for President Bush.
    President Franklin Roosevelt granted 3,687 during his 4-
year terms in office, and President Harry Truman granted 1,913. 
What is it about Democratic Presidents and pardons? I was going 
to call President Clinton the king of pardons, but considering 
these figures, I think it is only fair to call him the prince 
of pardons. However, on his last day in office President 
Clinton issued dozens of pardons, an unprecedented use of the 
pardon authority, and of course by waiting until then to 
announce the pardons Mr. Clinton escaped being held accountable 
for his actions while in office.
    One of President Clinton's pardons went to Mark Rich, a 
fugitive from justice who fled to Switzerland. He was granted 
clemency after being indicted for tax evasion and illegal oil 
deals made with Iran during the hostage crisis. Over $400,000 
was donated by his ex-wife Denise Rich to the Clinton Library 
and the Democratic Party.
    Other notorious Clinton clemencies went to 16 members of 
FALN, a Puerto Rican Nationalist Group responsible for setting 
off 120 bombs in the United States, killing six and injuring 
dozens more.
    In 1999, the House passed a resolution by a vote of 311 to 
41 that the President should not have granted clemency to 
terrorists. Only 2 Democrats on the Judiciary Committee today 
voted in favor of the resolution, 14 Democrats voted against 
the resolution or voted present. I hope they will show the same 
leniency toward Mr. Libby.
    Mr. Clinton also pardoned numerous criminals convicted of 
cocaine distribution and trafficking, including his half 
brother Roger and Carlos Vignale, who paid the First Lady's 
brother $200,000 to represent him. Also pardoned was a former 
Cabinet member who pleaded guilty to making false statement to 
authorities, and Susan McDougal, a real estate business partner 
of the Clintons who had relevant information about the 
Whitewater scandal and had been convicted of criminal contempt.
    As troubling as these pardons are, they are within 
President Clinton's authority to grant and neither I nor this 
Committee nor Congress can limit that power.
    New York Times columnist David Brooks summed it up last 
week in a column about Mr. Libby. He said, quote: ``Of course 
the howlers howl. That is their assigned posture in this drama. 
They entered howling, they will leave howling, and the only 
thing you can count on is their anger has been cynically 
manufactured from start to finish,'' end quote.
    Mr. Chairman, I have never offered my Democratic friends 
advice before, which is obviously unsolicited and no doubt 
unwanted, but if you want to avoid becoming the party of 
howlers, forget the partisanship, the Bush bashing, and the 
negativism. Let's come up with a positive agenda that benefits 
working men and women. The American people will appreciate it.
    I welcome our witnesses and look forward to hearing their 
testimony, and I yield back the balance of my time.
    Mr. Conyers. I thank the gentleman, and without objection, 
other Members' opening statements will be included in the 
record. And I accept his advice as well.
    The witness list includes Tom Cochran, Professor Douglas A. 
Berman, David Rivkin, Roger Adams, and the Honorable Joseph C. 
Wilson, IV, former Ambassador. Mr. Wilson from 1976 to 1998, 
during both Democratic and Republican administrations, held 
various diplomatic posts throughout Africa, eventually serving 
as Ambassador to Gabon. He was Acting Ambassador to Iraq when 
it invaded Kuwait in 1990. He is married to the former CIA 
agent, Valerie Plame. He will be our first witness.
    The witnesses know we limit testimony to 5 minutes. 
Welcome, all witnesses. Welcome, Ambassador Wilson.

    TESTIMONY OF THE HONORABLE JOSEPH C. WILSON, IV, FORMER 
                           AMBASSADOR

    Mr. Wilson. Thank you, Congressman, Mr. Chairman. Mr. 
Chairman, Mr. Ranking Member, Members of the Committee, thank 
you for the invitation to appear before you at this hearing on 
the possible abuse of presidential authority in the commutation 
of I. Lewis Libby, convicted on four counts of lying to Federal 
investigators, perjury, and obstruction of justice.
    I am not a lawyer, but I have understandably followed this 
case closely. This matter, after all, involves the betrayal of 
our national security, specifically the leaking of the identity 
of a covert officer of the Central Intelligence Agency, my 
wife, Valerie Wilson, as a vicious means of political 
retribution.
    After it became apparent in the spring of 2003 that one of 
the key justifications for war in the President's State of the 
Union Address was not supported by the facts, I felt an 
obligation and a sense of responsibility to the American people 
and to our men and women in uniform to share my firsthand 
knowledge about the unsubstantiated allegations of uranium 
yellowcake sales from Niger to Iraq.
    Accordingly, in a New York Times article of July 6, 2003, I 
disclosed the deliberate deception surrounding the 
justification for the invasion, conquest and occupation of 
Iraq. Eight days later Valerie's status as a CIA operative was 
made public in a newspaper column by Robert Novak. We now know 
from testimony and evidence presented in the United States v. 
I. Lewis Libby that Novak's column was the end product of a 
process that was initiated by Vice President Cheney, who 
directed his Chief of Staff Scooter Libby to supervise it.
    Never in my 23 years as a member of the Diplomatic Service 
of the United States did I ever imagine a betrayal of our 
national security at the highest levels. Fifteen years ago this 
week I was sworn in as George Herbert Walker Bush's Ambassador 
to two African nations, the Gabonese Republic and the 
Democratic Republic of Sao Tome and Principe. Seventeen years 
ago I served as his Acting Ambassador to Iraq in the first Gulf 
War. I was the last American diplomat to confront Saddam 
Hussein about his invasion of Kuwait prior to Desert Storm. As 
Acting Ambassador, my embassy was responsible for the safe 
evacuation of over 2,000 Americans from Kuwait and Iraq and the 
release of close to 150 Americans being held hostage by Saddam 
and his thugs.
    I was proud to serve my country mostly overseas for 23 
years in both Republican and Democratic administrations and to 
promote and defend the values enshrined in our Constitution and 
Bill of Rights. I was honored to be then President Bush's Envoy 
to Iraq and to have been part of the foreign policy team that 
managed the international crisis created by Saddam's invasion 
of Kuwait. Members of that foreign policy team remain among my 
closest colleagues and friends.
    Given my service, it has been therefore disconcerting to 
see my family and me targeted in the crosshairs of a character 
assassination campaign launched by the Vice President and 
carried out by his Chief of Staff and by the President's 
political aide, Carl Rove, among others.
    Ultimately this concerted effort to discredit me, ruining 
my wife's career along the way, has had a larger objective. 
This matter has always been about this Administration's case 
for war and willingness to mislead the American people to 
justify it.
    In order to protect its original falsehoods, the Vice 
President and his men decided to engage in a further betrayal 
of our national security. Scooter Libby sought to blame the 
press, yet another deception. He was willing even to allow a 
journalist to spend 85 days in jail in a most cowardly act 
designed to avoid telling the truth.
    President Bush promised that if any member of the White 
House staff were engaged in this matter, it would be a firing 
offense. However, the trial of Scooter Libby has proved 
conclusively that Carl Rove was involved and although he 
escaped indictment he still works at the White House. We also 
know as a result of evidence introduced in that trial that 
President Bush himself selectively declassified national 
security material to attempt to support the false rationale for 
war.
    The President's broken promise and his own involvement in 
this unseemly smear campaign reveal a chief executive willing 
to subvert the rule of law and system of justice that has 
undergirded this great republic of ours for over 200 years.
    Make no mistake, the President's actions last week cast a 
pall of suspicious over his office and Vice President Cheney. 
Mr. Libby was convicted of, among other things, obstruction of 
justice, a legal term used to describe a coverup. The Justice 
Department's Special Counsel Patrick Fitzgerald has said 
repeatedly that Mr. Libby's blatant lying has been the 
equivalent of throwing sand in the eyes of the umpire, 
therefore ensuring that the umpire, our system of justice, 
cannot ascertain the whole truth.
    As a result Fitzgerald has said a cloud remains over the 
Vice President. In commuting Mr. Libby's sentence the President 
has removed any incentive for Mr. Libby to cooperate with the 
prosecutor. The obstruction of justice is ongoing and now the 
President has emerged as its greatest protector.
    The President's explanation for his commutation that Mr. 
Libby's sentence was excessive turns out to be yet another 
falsehood because the sentence was quite normal, as Special 
Counsel Fitzgerald noted.
    The President at the very least owes the American people a 
full and honest explanation of his actions and those of other 
senior Administration officials in this matter, including but 
not limited to the Vice President.
    In closing, let me address the question of the underlying 
crime. Mr. Libby's attorneys and his apologists have tried to 
downplay the conviction on the grounds that nobody was actually 
indicted for the leak of Valerie's status as a covert CIA 
officer. Libby's propaganda is an effort to distract from his 
crime, his obstruction of justice, his coverup. Who is he 
protecting?
    I would like the Committee Members and all Americans to 
think about this matter in this way: If senior American 
officials take time from their busy schedules to meet with a 
foreign military attache for the purpose of compromising the 
identity of a CIA covert officer, what would we call that? 
Although that scenario is hypothetical, the end result is no 
different from what happened in this case, the betrayal of our 
national security.
    I look forward to answering any and all legitimate 
questions. Thank you.
    Mr. Conyers. Thank you.
    [The prepared statement of Mr. Wilson follows:]

      Prepared Statement of Ambassador Joseph C. Wilson, IV (ret.)
    Mr. Chairman, Mr. Ranking member, members of the Committee,
    Thank you for the invitation to appear before you at this hearing 
on the possible abuse of Presidential authority in the commutation of 
I. Lewis Libby, convicted on four counts of lying to federal 
investigators, perjury and obstruction of justice. I am not a lawyer, 
but I have understandably followed this case closely. This matter, 
after all, involves the betrayal of our national security, specifically 
the leaking of the identity of a covert officer of the Central 
Intelligence Agency, my wife, Valerie Wilson, as a vicious means of 
political retribution.
    After it became apparent in Spring of 2003 that one of the key 
justifications for war in the President's State of the Union address 
was not supported by the facts, I felt an obligation and a sense of 
responsibility to the American people and to our men and women in 
uniform to share my first-hand knowledge about the unsubstantiated 
allegations of uranium yellowcake sales from Niger to Iraq. 
Accordingly, In a New York Times article on July 6, 2003, I disclosed 
the deliberate deceptions surrounding the justification for the 
invasion, conquest, and occupation of Iraq. Eight days later Valerie's 
status as a CIA operative was made public in a newspaper column by 
Robert Novak. We now know from testimony and evidence presented in the 
United States vs. I. Lewis Libby that Novak's column was the end 
product of a process that was initiated by Vice President Cheney who 
directed his chief of staff, Scooter Libby to supervise it.
    Never in my twenty-three years as a member of the diplomatic 
service of the United States did I ever imagine a betrayal of our 
national security at the highest levels.
    Fifteen years ago this week, I was sworn in as George Herbert 
Walker Bush's Ambassador to two African countries--Gabon and Sao Tome 
and Principe. Seventeen years ago I served as his acting Ambassador to 
Iraq in the first Gulf War. I was the last American diplomat to 
confront Saddam Hussein about his invasion of Kuwait prior to Desert 
Storm. As acting Ambassador, my embassy was responsible for the safe 
evacuation of over 2,000 Americans from Kuwait and Iraq and the release 
of close to 150 Americans held hostage by Saddam and his thugs.
    I was proud to serve my country mostly overseas, for twenty-three 
years, in both Republican and Democratic administrations, and to 
promote and defend the values enshrined in our Constitution and Bill of 
Rights. I was honored to be then President Bush's envoy to Iraq and to 
have been part of the foreign policy team that managed the 
international crisis created by Saddam's invasion of Kuwait. Members of 
that foreign policy team remain among my closest colleagues and 
friends.
    Given my service, it has been therefore disconcerting to see my 
family and my targeted in the crosshairs of a character assassination 
campaign launched by the Vice President and carried out by his chief of 
staff, and by the President's chief political aide, Karl Rove, among 
others.
    Ultimately, this concerted effort to discredit me, ruining my 
wife's career along the way, has had a larger objective. This matter 
has always been about this administration's case for war and its 
willingness to mislead the American people to justify it. In order to 
protect its original falsehoods, the Vice President and his men decided 
to engage in a further betrayal of our national security. Scooter Libby 
sought to blame the Press, yet another deception. He was willing even 
to allow a journalist to spend eighty-five days in jail in a most 
cowardly act to avoid telling the truth.
    President Bush promised that if any member of the White House staff 
were engaged in this matter, it would be a firing offense. However, the 
trial of Scooter Libby has proved conclusively that Karl Rove was 
involved, and although he escaped indictment, he still works at the 
White House. We also know as a result of evidence introduced in the 
trial that President Bush himself selectively declassified national 
security material to attempt to support the false rationale for war. 
The President's broken promise and his own involvement in this unseemly 
smear campaign reveal a chief executive willing to subvert the rule of 
law and system of justice that has undergirded this great republic of 
ours for over 200 years.
    Make no mistake, the President's actions last week cast a pall of 
suspicion over his office and Vice President Cheney. Mr. Libby was 
convicted of, among other crimes, obstruction of justice--a legal term 
used to describe a cover-up. The Justice Department's Special Counsel, 
Patrick Fitzgerald, has said repeatedly that Mr. Libby's blatant lying 
had been the equivalent of ``throwing sand in the eyes of the umpire'', 
thereby ensuring that the umpire, the system of justice, cannot 
ascertain the whole truth. As a result, Fitzgerald has said, ``a cloud 
remains over the Vice President.'' In commuting Mr. Libby's sentence, 
the President has removed any incentive for Mr. Libby to cooperate with 
the prosecutor. The obstruction of justice is ongoing and now the 
President has emerged as its greatest protector. The President's 
explanation for his commutation that Mr. Libby's sentence was excessive 
turns out to be yet another falsehood because the sentence was quite 
normal, as Special Counsel Fitzgerald noted. The President, at the very 
least, owes the American people a full and honest explanation of his 
actions and those of other senior administration officials in this 
matter, including, but not limited to the Vice President.
    In closing, let me address the question of the underlying crime. 
Mr. Libby's attorneys and his apologists have tried to downplay his 
conviction on the grounds that nobody was actually indicted for the 
leak of Valerie's status as a covert CIA officer. Libby's propaganda is 
an effort to distract from his crime--his obstruction of justice, his 
cover up. Who is he protecting?
    I would like the committee members and all Americans to think about 
this matter in this way: If senior American officials take time from 
their busy schedules to meet with a foreign military attache for the 
purpose of compromising the identity of a CIA covert officer, what 
would we call that? Although that scenario is hypothetical, the end 
result is no different from what happened in this case--the betrayal of 
our national security.
    I look forward to answering any and all legitimate questions.

    Mr. Conyers. Doug Berman is the William B. Saxbe Professor 
at Ohio State University's Moritz College of Law. Professor 
Berman is nationally recognized in criminal law sentencing, co-
author of the casebook, sentencing Law and Policy, creator and 
author of the Sentencing Law and Policy blog, and a longtime 
editor of the Federal Sentencing Reporter.
    We welcome you to this hearing for your testimony.

          TESTIMONY OF DOUGLAS A. BERMAN, PROFESSOR, 
        MORITZ COLLEGE OF LAW, THE OHIO STATE UNIVERSITY

    Mr. Berman. Thank you very much, Mr. Chairman, Mr. Ranking 
Member, Members of the Committee. I very much appreciate this 
opportunity to share my perspective on President George W. 
Bush's sudden and surprising decision to commute entirely the 
prison term of I. Lewis ``Scooter'' Libby.
    As I will explain, President Bush's commutation was 
fundamentally a sentencing decision and a sentencing decision 
that is peculiar and suspect on its own terms and a sentencing 
decision that is inconsistent with the Justice Department's 
stated sentencing policies, with arguments Federal prosecutors 
make in court to courts across the Nation every day, and with 
the equal justice principles that Congress has pursued in 
modern sentencing reforms.
    Significantly, President Bush's statement in support of the 
commutation actually praises Mr. Fitzgerald's investigation and 
prosecution and also the jury's work in returning convictions. 
Ultimately, the statement focuses its criticism on U.S. 
District Judge Reggie Walton's sentencing choices.
    The President says, quote: ``The prison sentence given to 
Mr. Libby is excessive,`` and that is why he says he decided to 
compute the 30-month prison term imposed by Judge Walton. 
Seeking to justify this decision, the President claims that Mr. 
Libby is still subject to, quote, ``a harsh punishment because 
the commutation left in place the fine and supervision term 
ordered by Judge Walton.'' President Bush's statement also 
stresses collateral consequences, the damage to Mr. Libby's 
reputation and his family's suffering.
    I must say as a student of sentencing that the stated 
reasons that President Bush gave for commuting all of Mr. 
Libby's prison time are somewhat hard to understand and perhaps 
even harder to justify. Mr. Libby's prison term was set at the 
bottom of the sentencing range suggested by the Federal 
guidelines created by the U.S. Sentencing Commission. This term 
was recommended by an experienced prosecutor and selected by an 
experienced judge.
    The President's conclusion that Mr. Libby's term was 
excessive thus contradicts the recommendation of an expert 
sentencing agency and the determinations of the prosecutor and 
the judge most familiar with Mr. Libby's criminal offenses and 
personal circumstances.
    Quite notably, under existing precedence the D.C. Circuit 
Court of Appeals would have considered Mr. Libby's 30-month 
prison term and even a longer term set within the guidelines 
presumptively reasonable on appeal.
    Significantly, unlike some other high profile cases which 
have led to calls for the President to exercise his clemency 
power, even by some Members of this Committee, the prison 
sentence in Mr. Libby's case was not the product of a mandatory 
sentencing provision.
    Judge Walton clearly had discretion to choose whatever term 
he thought was appropriate under the circumstances, although 
Federal law did require him to impose a sentence he judged 
sufficient but not greater than necessary to achieve the 
purposes of punishment that Congress has set forth in Federal 
law.
    Obviously Judge Walton believed that not only a fine and 
supervision was necessary but that the 30-month prison term, 
again to stress at the bottom of the applicable sentencing 
range, was sufficient but not greater than necessary to achieve 
the punishment goals that Congress has set forth.
    Of course defendants and their attorneys often complain 
that sentences set within guideline ranges are excessive and 
they frequently appeal within-guideline sentences, claiming 
that they are unreasonably long. But in thousands of such 
appeals in recent years no Federal appellate court has declared 
a single within-guideline sentence to be unreasonably long.
    Indeed, since the Supreme Court's decision in United States 
v. Booker the vast majority of sentences imposed above the 
guidelines have been declared reasonable by Federal circuit 
courts and many sentences below the guidelines have been 
declared by courts unreasonable in light of congressional 
sentencing purposes and policies.
    Even if one accepts the President's assertion that a 30-
month prison term for Mr. Libby was excessive, it is hard to 
justify or understand the President's decision to commute Mr. 
Libby's prison sentence in its entirety, keeping Mr. Libby from 
having to spend even a single day in prison for convictions 
that the President in his own statement said were serious and 
are matters that cut to the heart of our criminal justice 
system.
    The Justice Department in a series of policy advocacy and 
speeches to this Committee and speeches to the Senate and a 
variety of testimony has emphasized the importance of equal 
justice. Members of this Committee and Congress as a whole have 
often emphasized the need for guidelines to be enforced in a 
way to ensure that all members of society are treated equally.
    Candidly, in my own writings I have been concerned that 
some of the personal circumstances emphasized by President Bush 
don't find their way into the application of the guidelines, 
but I am particularly concerned that the Bush administration 
argues every day in court that other persons should not be 
subject to the compassion that the President showed obviously 
in the statement toward Mr. Libby.
    I have in my testimony detailed in particular some of the 
inconsistencies between the goals that Congress has pursued in 
sentencing reform and the statements made by the President. I 
am happy to answer questions about those particulars, and I 
very much appreciate the chance to testify before this 
Committee. Thank you.
    [The prepared statement of Mr. Berman follows:]

                Prepared Statement of Douglas A. Berman




    Mr. Conyers. Thank you, Professor Berman.
    Our next witness is Pardon Attorney Roger Adams at the 
Department of Justice, a career position he has held throughout 
the current Bush administration as well as for 3 years in the 
Clinton administration. He testified before the Senate 
Judiciary Committee in 2001 regarding President Clinton's 
pardon of Mark Rich.
    While Mr. Adams can provide the Committee with information 
regarding the pardon and commutation process as it ordinarily 
works and the extent to which the ordinary process was followed 
or diverged from in this instance, career department officials 
such as Mr. Adams do not generally state policy positions on 
behalf of the Department. Under those circumstances, we are 
pleased to welcome you to the hearing today.

  TESTIMONY OF ROGER C. ADAMS, OFFICE OF THE PARDON ATTORNEY, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Adams. Chairman Conyers, Ranking Member Smith, and 
Members of the Committee, thank you for asking me to appear 
before the Committee to discuss the work of the Office of the 
Pardon Attorney. For over a century the White House has usually 
relied on the Department of Justice and specifically the Office 
of the Pardon Attorney to receive, investigate----
    Mr. Conyers. Pull your mike closer, sir.
    Mr. Adams [continuing]. Usually relied on the Office of the 
Pardon Attorney to receive, investigate and make 
recommendations on clemency requests and to prepare the 
documents the President signs when granting a pardon or 
commutation of sentence.
    It is crucial to emphasize at the outset, as you just did, 
Mr. Chairman, that for the past quarter century the Pardon 
Attorney and all the employees in the office have been career 
officials rather than political appointees. And as you noted, 
Mr. Chairman, I began my tenure as Pardon Attorney in 1997 
during the administration of President Clinton and have been 
privileged to serve since then.
    While the Department processes requests for executive 
clemency in accordance with regulations promulgated by the 
President and set forth in the Code of Federal Regulations, it 
is important to keep in mind that those regulations create no 
enforceable rights in persons applying for executive clemency, 
and they do not restrict the plenary authority granted to the 
President under Article II, section 2 of the Constitution. The 
President is free to grant a pardon or commutation without the 
involvement of the Pardon Attorney or anyone else in the 
Department of Justice. However, my testimony outlines the more 
common situation when my office is involved.
    When we are involved our task is to prepare what is called 
a letter of advice, actually a report and recommendation 
setting out what we think the President should do. The Office 
of the Pardon Attorney sends a report and recommendation to the 
Deputy Attorney General, who reviews it, directs any changes he 
believes are appropriate, and signs a recommendation when he is 
satisfied that it reflects the Department's best advice on the 
matter. The report is then sent to the Counsel to the 
President.
    As for the steps we take to prepare a letter of advice, let 
me first discuss the process my office follows in pardon cases. 
Under the provisions of 28 CFR, section 1.2, a person does not 
become eligible to file for a pardon request until the 
expiration of a 5-year waiting period that commences upon the 
date of the individual's release from confinement, or if no 
condition of confinement was imposed, the date of conviction.
    The pardon applicant files the petition with my office. The 
standard application form requests information about the 
offense, the petitioner's other criminal record, biographical 
information, including such matters as employment and residence 
history since conviction, and the reasons the person seeks the 
pardon.
    As an initial investigative step the Office of the Pardon 
Attorney contacts the United States probation office for the 
district of conviction to obtain copies of the presentence 
report and judgment order 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 indicates 
favorable action is not warranted, my office prepares a report 
to the President recommending that pardon be denied.
    Alternatively, if the initial review indicates that the 
case may have some merit, it is referred to the FBI for a 
background investigation.
    The Bureau provides the Office of the Pardon Attorney with 
factual information about the petitioner, including his or her 
criminal history, records concerning the offense for which 
pardon is sought, employment and residence history, and the 
petitioner's reputation in the community. If the FBI report 
suggests that favorable treatment may be warranted or if the 
case is of particular importance or raises significant factual 
questions, the Office of the Pardon Attorney requests input 
from the prosecuting authority, the sentencing judge and, in 
appropriate circumstances, the victims of the petitioner's 
crime.
    After an evaluation of all the relevant facts, my office 
prepares a report containing a recommendation as to whether a 
pardon should be granted or denied.
    Let me now briefly turn to commutation requests. As with 
pardons, a Federal inmate seeking a Presidential commutation of 
his sentence files a petition with the Office of the Pardon 
Attorney. The petitioner is free to supply any additional 
documentation he or she believes will provide support for the 
request.
    In completing the petition, the person explains the 
circumstances underlying his conviction, provides information 
regarding his or her sentence, criminal record, any appeals or 
other court challenges that have been filed, and the grounds 
upon which relief is sought.
    After my office reviews the commutation petition to ensure 
that the applicant is eligible to apply, we contact the warden 
of the petitioner's correctional institution to obtain copies 
of the presentence report and judgment of conviction as well as 
the most recent prison progress report. The latter details the 
inmate's adjustment to incarceration, including his 
participation in work, educational, vocational, counseling and 
financial responsibility programs and other matters. We also 
check automated legal databases for court opinions relating to 
the petitioner's conviction.
    If our review of this information uncovers significant 
issues or suggests that the case may have some merit, my office 
solicits the views of the prosecuting authority, sentencing 
judge and, in appropriate cases, the victim of the crime.
    Just to wind up, Mr. Chairman, following the evaluation of 
all the material gathered in the course of the investigation, 
the Pardon Attorney's Office drafts its report and 
recommendation for or against commuting the sentence.
    Mr. Chairman, the Office of the Pardon Attorney plays an 
important role in preparing recommendations to inform the 
President's consideration of pardon and commutation petitions. 
However, as I noted, the office is staffed by career employees, 
has no policymaking authority, and its recommendations cannot 
bind the President in the discharge of constitutional 
authority.
    In closing, let me thank you again for the opportunity to 
testify; and, as you noted in your introduction, I am here in 
my capacity as pardon attorney and would be glad to answer any 
questions you have at the appropriate time.
    Mr. Conyers. Thank you, Attorney Adams.
    [The prepared statement of Mr. Adams follows:]

                  Prepared Statement of Roger C. Adams




    Mr. Conyers. Next we have Attorney Thomas Cochran, who has 
served for more than 15 years as an Assistant Federal Public 
Defender for the Middle District of North Carolina. Mr. Cochran 
represented Victor Rita, Jr., in the recently decided Supreme 
Court case Rita versus the United States which involved 
important issues regarding interpretation of the Federal 
sentencing guidelines.
    We welcome you, sir, to this hearing.

TESTIMONY OF THOMAS COCHRAN, ASSISTANT FEDERAL PUBLIC DEFENDER, 
               MIDDLE DISTRICT OF NORTH CAROLINA

    Mr. Cochran. Thank you.
    Mr. Chairman, Mr. Ranking Member, distinguished Members of 
the Committee, I want to thank you for convening this hearing 
and for granting me the opportunity to appear before you today 
on behalf of my client, Mr. Rita.
    I have been an attorney for over 20 years and for over 14 
with the Federal Public Defender's Office in North Carolina. In 
2005, I was appointed as appellate counsel to represent Mr. 
Rita; and I assisted him with his case through to the United 
States Supreme Court. On appeal, Mr. Rita sought to have his 
sentence of 33 months vacated based on various factors, 
contending that such a sentence was excessive and unreasonable.
    Mr. Rita has asked me to thank you for your time, and he 
expressed his regret in not being able to be here with us 
today. Unfortunately, Mr. Rita was required to report to the 
Bureau of Prisons on July 2, 2007, to begin the service of his 
sentence. Ironically, this was the same day that President Bush 
commuted the 30-month prison term of I. Lewis Libby, concluding 
that his sentence was excessive.
    It is highly appropriate for you to examine the legal 
background in Mr. Rita's case and Mr. Libby's case. I believe 
you will be surprised to find they are nearly identical in many 
aspects. To begin, you will be surprised to find that neither 
man was truly the target of the investigation for which he 
ultimately was charged.
    In North Carolina, Assistant U.S. Attorney Matthew Martens 
began an investigation of a North Carolina firearms company, 
InterOrdnance, to determine whether it was violating the 
Federal firearms laws. In the process of this investigation, 
Mr. Martens called witnesses, including Mr. Rita, before the 
grand jury.
    Here in Washington, U.S. Attorney Patrick Fitzgerald was 
appointed to investigate the leaking of Valerie Plame's name to 
columnist Robert Novak to learn whether any person violated 
either the Intelligence Identities Protection Act or the 
Espionage Act. In the process of this investigation, Mr. 
Fitzgerald called witnesses, including Mr. Libby, before the 
grand jury to testify.
    Both men, Rita and Libby, were federally indicted on counts 
of making false statements under oath, perjury and obstruction 
of justice. Both were convicted by a jury. Both men were 
sentenced to over 2 years of imprisonment, Mr. Rita for 33 
months and Mr. Libby for 30 months. Both men have extensive 
civil service backgrounds, are dedicated family men, and have 
been subjected to a harsh sentence based in part on allegations 
never presented to the jury.
    Despite all of these similarities, today Mr. Rita is in 
prison and Mr. Libby is not.
    I have no involvement in the Libby case, and therefore 
cannot comment upon the details of what transpired other than 
what I have gleaned from documents retrieved from the district 
court file. Having represented Mr. Rita, however, I can give 
you a better explanation of his case and background.
    Mr. Rita is a 59-year-old man who spent the better part of 
his life in public service. Like Mr. Libby, who has received 
various awards for his service, Mr. Rita has accumulated over 
35 medals, awards and commendations for his military service. 
All told, Mr. Rita retired with more than 32 years of service 
to the Federal Government.
    Like Mr. Libby, whose attorneys described him in their 
sentencing memorandum as a dedicated family man, Mr. Rita is 
also devoted to his family. He describes himself as a family 
man, having helped raised his two sons.
    Despite these similarities, his personal background is 
different from Mr. Libby's in many respects. While Mr. Libby is 
a law school graduate, Mr. Rita had a troubled youth and had to 
grow up partly on his own and dropped out of high school. He 
did obtain his GED and later completed an associate of arts 
degree while working for then the INS.
    As a result, Mr. Rita is not of the same means as Mr. 
Libby. Though he retained his own attorney in the district 
court, he went into debt and exhausted all of his funds during 
that trial. His pro se notice of appeal he filed himself and 
was appointed counsel for the appellate process.
    In comparison, Mr. Libby had the benefit of his own legal 
training, large defense team, and the Libby Legal Defense Trust 
formed to defray the legal costs for his defense.
    In addition to his severely strained economic condition, 
Mr. Rita also differs from Mr. Libby with regard to his health. 
Mr. Rita suffers from hypertension, degenerative disc disease, 
type 2 diabetes, an enlarged prostate, infection in his legs, 
and a skin rash due to the exposure of Agent Orange while he 
was a foot soldier in Vietnam. There are suspicions some of his 
illnesses originated from the exposure of Agent Orange. He 
takes well over a dozen medications per day and requires a C-
PAP machine to sleep at night.
    Now I would like to address some of the parts of the 
decision in the Supreme Court case. Leading to that, Mr. Rita 
appeared before the grand jury in North Carolina and gave 
answers that were contrary to his actions. Those answers 
provided the basis for charges of false testimony and 
obstruction. He was indicted on these charges.
    With regard to Mr. Libby's case, please note that his five 
counts of obstruction and false statement and perjury revolve 
around three conversations that he had. Mr. Rita was only 
brought before the grand jury once, Mr. Libby four times.
    Mr. Rita went to trial and was convicted on all five 
counts. His trial counsel filed a motion for reduced sentence. 
At sentencing, counsel presented evidence; and Mr. Rita was 
sentenced to 33 months.
    Mr. Libby also went to trial and was convicted of four of 
the five charges against him. He filed sentencing memoranda 
requesting a sentence of probation. The court sentenced him to 
30 months, 2 years of supervision and a $250,000 fine. On July 
2, President Bush commuted Mr. Libby's 30-month sentence.
    Mr. Conyers. Could you wind up, sir?
    Mr. Cochran. I would be happy, Mr. Chairman.
    Incredibly, the President's justification for commuting Mr. 
Libby's sentence mirrors Mr. Rita's argument before the Supreme 
Court. However, when Mr. Rita appeared before the Court this 
past February the President's Solicitor General took the 
opposite position and argued that uniformity in sentencing 
trumped Mr. Rita's justification.
    The President's actions placed his absolute constitutional 
pardon power at odds with his own Solicitor General's 
successful argument before the Supreme Court.
    I spoke by telephone with Mr. Rita this past Monday. He had 
one question that he asked that I pose to this Committee: How 
can the executive branch argue that my reasons for seeking a 
lower sentence before the Supreme Court were wrong and then use 
my same reasons for a lower sentence to justify wiping out Mr. 
Libby's prison time completely?
    I would like to thank you for your time, and I would be 
happy to answer whatever questions I can.
    Mr. Conyers. I thank the witness.
    [The prepared statement of Mr. Cochran follows:]

                  Prepared Statement of Thomas Cochran




    Mr. Conyers. Finally, we have Attorney David Rivkin, a 
partner in the office of BakerHostetler. Prior to entering 
private practice, Mr. Rivkin served in the George H. W. Bush 
White House as Associate Executive Director and Counsel of the 
President's Council on Competitiveness, as a Special Assistant 
for Domestic Policy to Vice President Quayle.
    We welcome you, sir, at this important hearing.

        TESTIMONY OF DAVID RIVKIN, BAKER & HOSTETLER LLP

    Mr. Rivkin. Chairman Conyers, Ranking Member Smith, Members 
of the Committee, I do appreciate a chance to appear before you 
and address this important public policy issue.
    We all agree that the President constitutionally has the 
right to engage in the practice he has engaged in regard to Mr. 
Libby. The question is one of propriety and policy merits.
    We have heard criticisms today and before that commutation 
of Mr. Libby's sentence imposed after a jury found him guilty 
of perjury and obstruction of justice evidences disregard for 
the rule of law, at the very least, realizes the very serious 
nature of the offenses involved.
    Let me stipulate that perjury and obstruction of justice 
indeed are serious transgressions that ought to be taken 
seriously. By the same token, the very nature of the pardon 
power presupposes the President's ability to pardon individuals 
accused of minor as well as serious offenses.
    More fundamentally, and in a certain sense apropos, given 
Chairman Conyers' statement, I believe that the pardon power, 
when properly deployed by the President, properly advances the 
cause of justice.
    The framers understood the justice under the law, the 
justice of rules, procedures, equal treatment, due process, 
which again Chairman Conyers mentioned in his opening 
statement, while important to our systems of ordered liberty, 
is not the only conceivable form of justice. The framers 
believed the political branches ought to render in appropriate 
circumstances a different kind of justice driven by 
considerations of equity and not rules. It is the closest to 
what the framers would have called the natural draw-driven 
justice.
    The President's pardon power is one notable example of his 
justice. Incidentally, the ability of Congress to pass private 
bills, which sidestep the rules governing immigration or land 
acquisition, is another.
    The pardon power is inherently selective. It does critics 
no good to complain that thousands of people seek it but only 
few obtain favorable results. It is inherently discretionary 
when he believes it to be in the best interest of justice. The 
fact that somebody was prosecuted and punished by a jury of his 
peers in accordance with the established evidentiary and other 
judicial procedures suggests in most instances that justice was 
done. Unfortunately, that is not always the case.
    This is not, by the way, to criticize our criminal justice 
system, which is, in my view, the most defendant-friendly 
system in today's world, and certainly the fairest. But any 
rule-based system, no matter how well-managed and operated, 
produces less than perfect results.
    In my view, there are several reasons why the entire 
prosecution of Mr. Libby did not evolve in a way that could 
promote justice. With all due respect to the Chairman, these 
are not extraneous considerations, these are the key factors 
bearing upon the President's decision, in my opinion, to 
provide the pardon power.
    I do not want to impugn the integrity of any participant in 
this process. Prosecutor Fitzgerald does not have a partisan 
bone in his body, neither does Judge Walton. But to me the 
whole process was irredeemably tainted from the very beginning.
    The most important and consequential problem was the 
decision to appoint a Special Counsel. This step was 
particularly regrettable since the senior DOJ officials knew 
prior to tapping Mr. Fitzgerald that the leak of Valerie 
Plame's name to the columnist Robert Novak, the ostensible 
reason for the CIA's referral of the matter to the Department 
of Justice, was in effect by the Deputy Secretary of State Dick 
Armitage. Mr. Fitzgerald certainly knew of that fact at the 
time he accepted his appointment and shortly thereafter.
    As I have written and said on many occasions on a pretty 
bipartisan basis, the appointment of a special and independent 
counsel, no matter what the virtues of the individual involved, 
invariably skews the exercise of prosecutorial discretion and 
is virtually guaranteed to produce less than optimal results. 
It fosters time and again a leave-no-stone-unturned, 
protracted, costly and Inspector Javier-like pursuit of the 
individual being investigated.
    Here we have a situation where Special Counsel spent 
several years and millions of taxpayer dollars all because he 
believed Mr. Libby might have lied to him or his investigators. 
In the process he caused a great deal of harm for the ability 
of reporters to conduct business. I emphasize that because I do 
not see how, quite aside from frailties of human memory, Mr. 
Fitzgerald could have known for sure at the time he went after 
Judith Miller and Matt Cooper and other media figures that Mr. 
Libby's account of his discussions with reporters does not 
square with theirs. Ask yourself whether a regular DOJ 
prosecutor not wearing a Special Counsel hat would have done 
this.
    Now I am not going to retrace the discussion about Sandy 
Berger because among other things Ranking Member Smith 
mentioned it. By the way, I am not suggesting that Mr. Berger 
was treated too leniently, I am suggesting Mr. Libby was 
treated too harshly.
    Here we have two senior officials accused of--suspected of 
engaging in similar conduct. They received dramatically 
different treatment from our criminal justice system.
    That brings me to my last point, which is trumpeted by many 
critics of this commutation, why wasn't he exonerated by the 
jury? In my view, the reason has everything to do with how Mr. 
Fitzgerald presented it to the jury. He did this ably but in a 
way that fundamentally was unfair and sealed Mr. Libby's fate 
with the jury. Jurors are human beings, and as human beings, 
and particularly in a case that does not involve money, they 
want to understand the defendant's motivations.
    The key thing is the narrative presented by the prosecutor. 
In Mr. Libby's case he presented the following narrative, we 
actually heard the narrative substantially repeated by Mr. 
Wilson on this panel today, that there was a nefarious effort 
in the White House to destroy Mr. Wilson's reputation and even 
to punish him by allegedly hurting the career of his wife 
Valerie Plame and these activities were a part and parcel of 
the broader effort to sell the Iraq war to the American people. 
While I believe this narrative to be fundamentally false, it 
proved successful with the jury. The fact that the critics of 
the President's decision to commute Mr. Libby's sentence 
invariably invoke the broad narrative of the alleged White 
House Iraq war-related nefarious activities, underscore how 
unfair and politicized this whole prosecution has been.
    To summarize, since Mr. Libby's prosecution led to a 
fundamentally unjust result, the use of the pardon power to 
remedy the injustice, if only partially at this time, was an 
entirely correct and proper exercise of the President's power 
in this instance, what the framers expected the pardon power to 
be used for at this point in time. I hope the President 
completes the job and pardons Mr. Libby at the appropriate 
time.
    Thank you.
    [The prepared statement of Mr. Rivkin follows:]

               Prepared Statement of David B. Rivkin, Jr.

    I want to express my gratitude to Chairman Conyers and Ranking 
Member Lamar Smith, for inviting me to appear before you today to 
participate in the hearing on President Bush's use of his pardon power 
to commute the prison sentence of the former Chief of Staff to Vice 
President Cheney, Scooter Libby. Let me say at the outset that nobody 
can seriously argue that, with the single exception of impeachment 
cases, the President's pardon power is not absolute on its face or that 
it cannot be exercised by the President in any and all policy contexts, 
so long as the underlying offense involves violations of federal law. 
Indeed, the concerns that have been expressed about this commutation 
are primarily of a policy nature and go to the propriety of the 
commutation of Mr. Libby's prison sentence and the context in which it 
was issued. My bottom line view is that, given all the facts and 
circumstances involved in Patrick Fitzgerald's investigation and 
prosecution of Mr. Libby, the commutation of his sentence at this time 
by the President is entirely appropriate. Indeed, it is my hope that, 
in due course, the President will take the next step and issue a full 
pardon to Mr. Libby.
    Let me go through the policy arguments that have been raised 
against the President's action and outline for you some suitable 
rebuttals. First, let's take the issue of timing of the commutation, 
since many critics have suggested that it was premature. The simple 
answer is that, following Judge Walton's decision not to allow the 
continuation of bail for Mr. Libby during the pendency of his appeal, 
and the rejection by the D.C. Circuit of Mr. Libby's challenge to this 
decision, he was subject to an immediate incarceration. In this regard, 
I recognize that Judge Walton's decision was entirely within his 
discretion--there is no constitutionally-protected right to bail 
following conviction. Accordingly, the D.C. Circuit's affirmation of 
this decision is also quite legally correct. Nevertheless, in my view, 
it was unnecessarily harsh.
    Second is the criticism that the commutation of Mr. Libby's 
sentence, imposed after the jury found him guilty of perjury and 
obstruction of justice, somehow evinces disregard for the rule of law 
or, at the very least, trivializes what are properly considered to be 
serious violations of federal law. Let me stipulate that perjury and 
obstruction of justice are indeed major transgressions and ought to be 
taken seriously. By the same token, the very nature of the pardon power 
presupposes the President's ability to pardon individuals convicted of 
serious violations of federal law; there is no suggestion in the 
Constitution that only minor offenses ought to be a proper subject for 
the exercise of the pardon power.
    More fundamentally, I believe that the pardon power, when properly 
deployed, advances the cause of justice. The Framer's understood that 
justice under the law, the justice of rules, procedures and ``due 
process'', while important to our system of ``ordered'' liberty, is not 
the only conceivable form of justice. They wanted the political 
branches to render a different kind of justice, driven by the 
considerations of equity and not by rules. It is the closest we come 
today to what the Founders would have called the natural law-driven 
justice. The President's pardon power is one example of such justice; 
the ability of Congress to pass private bills, which sidestep the rules 
governing immigration or land acquisition, is another.
    The pardon power is, of course, inherently selective--it does 
critics no good to complain that thousands of people seek it, but only 
a few obtain favorable results. It is inherently discretionary, and is 
an extraordinary remedy to advance what the President exercising it 
believes to be in the best interests of justice. The fact that somebody 
was prosecuted and convicted by the jury of his peers, in accordance 
with the established evidentiary and other judicial procedures, 
suggests, in most instances, that justice was done. Unfortunately, 
there are some instances where this is not the case.
    This is not, by the way, to criticize our criminal justice system, 
which is, probably, the fairest and most defendant-friendly system in 
today's world. However, any rule-based system, no matter how well-
managed and operated, inevitably, albeit very occasionally, produces 
less than perfect results. There are instances where obviously guilty 
individuals go free, and there are occasions where individuals, who 
should not have been prosecuted at all, end up being convicted.
    In my view, there are several reasons why the entire prosecution of 
Mr. Libby did not evolve in a way that could have promoted justice or 
ended up promoting justice. This, incidentally, is not meant to impugn 
the integrity of any of the participants in what, in my view, became a 
rather tragic process. Prosecutor Fitzgerald is undoubtedly an 
honorable man, and, by all accounts, does not have a partisan bone in 
his body. The same is true about Judge Walton, and I have no doubt that 
the jury was fair and conscientious in its deliberations. The problems 
reside elsewhere.
    The most important and consequential problem was the decision to 
appoint a Special Counsel to investigate this matter in the first 
place. This step was particularly regrettably, since the senior DOJ 
officials knew, prior to tapping Mr. Fitzgerald, that the leak of 
Valerie Plame's name to the columnist Robert Novak--the ostensible 
basis of the CIA's referral of the matter to the Department of 
Justice--was effected by the Deputy Secretary of State Dick Armitage 
and that Mr. Fitzgerald either learned about this fact at the time he 
was appointed and likewise. Also, it appears that shortly after his 
appointment, Mr. Fitzgerald knew that the very reason for his 
appointment--alleged violation of IIPA--was in error, since Ms. Wilson 
was not a covert agent within the meaning of the IIPA. More generally, 
as I have written and argued on other occasions, the appointment of a 
Special or Independent Counsel, no matter the probity and virtue of the 
individual involved, invariably skews the exercise of prosecutorial 
discretion and is virtually guaranteed to produce less than optimal 
results. It fosters time and again a ``leave no stone unturned,'' 
protracted, costly, and Inspector Javier-like pursuit of the individual 
being investigated. Yet, doing justice is not a mechanical process and 
it must always be informed by a sound exercise of prosecutorial 
discretion.
    Here, we have a situation where a Special Counsel spent several 
years and millions of taxpayer dollars all because he believed that Mr. 
Libby might have lied to him or to his investigators when they 
investigated a ``crime'' they already knew had not been committed. In 
the process, the Special Counsel caused a great deal of harm to the 
ability of reporters to ply their business--which is a core element of 
our body polity's overall system of political and institutional checks 
and balances. I emphasize the word ``might'' because, quite aside from 
the frailties of human memory, Mr. Fitzgerald could not have known for 
sure at the time he went after Judith Miller, Matt Cooper, and other 
media figures that Mr. Libby's account of having heard first from 
reporters of Ms. Plame's work and her alleged role in organizing her 
husband's trip to Niger was false. That conclusion on his part 
necessarily had to await until he successfully coerced the reporters 
involved. Ask yourself whether a regular DOJ prosecutor, not wearing a 
Special Counsel hat, would have done this.
    And, to those who say that, given Mr. Libby's high-government 
position, a regular government prosecutor would have been just as 
relentless as Mr. Fitzgerald, my response is look at how the Department 
of Justice's career attorneys (in the Public Integrity section) treated 
another high-ranking official, President Clinton's former National 
Security Advisor, Sandy Berger. There is no dispute about what Mr. 
Berger has done, since he admitted, after some time lapsed, to such 
transgressions as stealing highly classified documents from the 
National Archives, destroying at least some of them, and lying about it 
to Executive branch officials. What he did certainly amounted to an 
obstruction of justice, providing misleading and false information to 
Executive branch officials, and several other serious criminal law 
transgressions. The only reason perjury is not on my list is because 
Mr. Berger was not put in the position where he had to testify under 
oath.
    Yet, presented with all of these facts, the career attorneys in the 
Department of Justice decided not to prosecute him and settled for the 
imposition of a fine on Mr. Berger, as well as the forfeiture for a 
period of years of his security clearance. My point here is not to 
suggest that Mr. Berger was treated too leniently; rather it is to 
suggest that Mr. Libby was treated too harshly. In my view, when two 
senior government officials, who have been accused or suspected of 
having engaged in a substantially similar conduct--in neither case was 
personal enrichment or any other pecuniary consideration an issue--
receive a dramatically different treatment from our criminal justice 
system, we cannot say that justice was done.
    This brings me to my last point, which has been trumpeted by the 
critics of the President's commutation of Mr. Libby's sentence--why 
wasn't he exonerated by the jury, since juries are often swayed by 
arguments that a particular defendant was treated overly harshly by the 
government or was made a scapegoat for the transgressions of others. 
Indeed, Mr. Libby's lawyers have tried to deploy some arguments along 
these lines and yet, did not succeed. In my view, the reason for this 
has to do with how Mr. Fitzgerald chose to present his case to the 
jury. He did so ably, and without violating his ethical obligations; 
yet, in my view, it was done in a way that was fundamentally unfair and 
sealed Mr. Libby's fate with the jury.
    Jurors are human beings and as human beings want to understand a 
defendant's motivations. As a result, the overall narrative provided by 
the prosecutor, the context if you will, is extremely important. In Mr. 
Libby's case, Mr. Fitzgerald presented the jury the following damning 
narrative--there was a nefarious effort in the White House to destroy 
Joe Wilson's reputation and even to punish him, by allegedly hurting 
the career of his wife Valerie Plame; these activities were a part and 
parcel of the broader effort to sell the Iraq war to the American 
people. While I believe this narrative to be fundamentally false, it 
proved successful with the jury.
    The fact that the critics of the President's decision to commute 
Mr. Libby's sentence invariably invoke the broad narrative of the 
alleged White House Iraq war-related nefarious activities, underscores 
how unfair and politicized this whole exercise has been.
    To summarize, since, in my opinion, Mr. Libby's prosecution led to 
a fundamentally unjust result, the use of the pardon power to remedy 
the injustice, if only partially at this time, was an entirely correct 
and proper exercise of the President's powers.

    Mr. Conyers. Thank you very much. Let me begin the 
questions by asking Mr. Adams, based upon your experience as 
Justice Department's Pardon Attorney for over a decade, are you 
aware of any other instance in which a President has given 
clemency to an official in his own Administration regarding a 
conviction for obstructing an investigation into possible 
wrongdoing potentially involving other officials in his 
Administration?
    Mr. Adams. Let me make sure I understand the question, Mr. 
Chairman. Clemency for a former official in his Administration?
    Mr. Conyers. Yes. Are you aware of any other instance in 
which a President has given clemency to an official in his own 
Administration regarding a conviction for obstructing an 
investigation into possible wrongdoing that could involve other 
officials in his Administration.
    Mr. Adams. That is a fairly narrow criteria, and I have had 
a lot of cases that have gone through my office. I don't think 
I can recall such a specific case. I can recall--we are all 
familiar with cases where a President has pardoned or granted 
either pardons or commutations to people who have formerly been 
in the executive branch.
    Mr. Conyers. Thank you. Mr. Berman, ordinarily under the 
sentencing guidelines would the fact that a person has led a 
privileged life and has held high positions in government be a 
mitigating factor in determining an appropriate sentence rather 
than an aggravating factor, in your view?
    Mr. Berman. The guidelines say prior military service, 
prior good works, it speaks to these factors being not 
ordinarily relevant in deciding whether to go outside the 
guideline range. The guidelines provide, as they did in this 
case, a range, usually fairly narrow, again, for Mr. Libby it 
was 30 to 37 months. The fact that Judge Walton picked a 
sentence at the bottom of the range suggests to me that Judge 
Walton was attentive at some level to some of these personal 
factors, and I think your question itself highlights the way in 
which these kinds of personal factors could be seen as either 
mitigating or aggravating. In fact, Mr. Fitzgerald in his 
sentencing memorandum highlighted that by virtue of Mr. Libby 
having a career as a lawyer, being a high government official; 
that background may have made it a more aggravating set of 
circumstances to obstruct justice in these situations.
    Other cases obviously raise these personal factors in 
different contexts.
    Mr. Conyers. Thank you. Ambassador Wilson, you have 
listened patiently through all of this except for your own 
testimony. Would you want to share anything with our Committee 
in connection with what you have heard thus far in this 
hearing?
    Mr. Wilson. Well, Congressman, I am surrounded by a number 
of lawyers, and I am not a lawyer, even though the half of the 
lawyers in this town who are not employed by Mr. Libby are 
probably employed by me.
    I am struck by, one, the nature of the underlying crime 
that was initially investigated. It was a breach of the 
national security of this country. It is very clear from the 
testimony that came out that a number of senior White House 
officials were involved, and I repeat what I said in my earlier 
prepared testimony, that Mr. Fitzgerald suggested that there 
was a cloud over the Vice President. These people were in the 
direct chain of command of the President of the United States 
and commuting their sentence and commuting Mr. Libby's sentence 
and keeping Mr. Rove employed as his political adviser even 
after it became known that Mr. Rove was one of the leakers and 
in violation of the President's own edict, it casts a pall over 
the President and over his office and over these senior 
officials.
    I would like to see the President and the Vice President 
come clean with the American people, beginning with perhaps 
releasing their own interviews with Special Counsel Fitzgerald. 
I think they owe that to the American people. I would like to 
see the cloud lifted.
    Mr. Conyers. Thank you so much. Mr. Berman, did the 
President's statement encourage Federal judges to disregard the 
guidelines?
    Mr. Berman. I think there is a likelihood that defense 
attorneys will be citing the President's statement in support 
of their own what's been called Libby motions suggesting that 
the guidelines ought not be followed whenever a person has 
these kind of collateral harms to reputation, harms to their 
family, which are in some sense inevitable when any person of 
high position or privilege is subject to a criminal indication.
    Again, personally I think there may be circumstances, there 
may be situations in which those kind of personal circumstances 
ought to come to bear, and I am often disappointed that there 
isn't a way for defense attorneys to put that within the 
guidelines, that the guidelines do not enable judges, generally 
speaking, to formally consider some of these factors that may 
bear on culpability and likelihood of recidivism. But I think 
it is almost inevitable not only that defense attorneys will 
make these motions, but that different judges around the 
country will react to the motions differently, some believing 
that the President made the right judgment and then reducing 
the sentence below the guidelines in accordance with the 
President's sentiments, others listening to more standard 
Justice Department arguments that these factors ought not be 
considered because there is a risk that it sends the message 
that those of privilege or those who suffer outside the 
courtroom ought not be punished through the normal processes.
    Mr. Conyers. Thank you very much. The Chair recognizes the 
distinguished Ranking Member, Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman. First of all, I would 
like to ask unanimous consent to have made a part of the record 
all the commutations and pardons by the current President Bush 
to date as well as all the pardons and commutations of the 
former President Clinton.
    Mr. Conyers. Without objection, so ordered.
    Mr. Smith. Today is kind of an interesting hearing. When 
you and I spoke about this hearing several days ago, you 
assured me that it was not going to be a partisan hearing, and 
the reason you gave as to why it was not going to be a partisan 
hearing is because we were going to examine previous 
Administrations, Republican and Democrat alike.
    I read all the majority witnesses' testimony and there is 
no mention of any previous Administration. I listened to their 
oral testimony today and there was no mention of any previous 
Administration. So I am a little disappointed and I know it 
wasn't intended but clearly has turned out to be a partisan 
hearing, and particularly not any curiosity about past 
Administrations.
    I would like to ask the majority witnesses this question 
though, did any of the majority witnesses take a look at the 
Clinton record, particularly in regard to the pardons that were 
given to individuals convicted of similar crimes that Mr. Libby 
had been convicted of? In other words, did you look to see how 
many people received pardons for being convicted of perjury, 
obstruction of justice or making false statements? Was there 
any curiosity about that? Mr. Berman.
    Mr. Berman. A lot of curiosity, although I would say I have 
been long critical of President Clinton's own record on pardons 
and commutations. I was particularly disappointed that in light 
of his period as President and the extraordinary growth in the 
Federal prison population, the increasing use of mandatory 
minimum sentences, the extent to which many, many first 
offenders with the same kind of personal circumstances that are 
involved in Mr. Libby's case, not always the exact same crime 
but often nonviolent first offenses when there is no risk of 
recidivism that the President didn't take a more proactive 
role, President Clinton, in bringing justice to those cases.
    Because as others have mentioned, the justice system does 
not always work perfectly, and the clemency power exists to 
deal with not just cases of wrongful conviction, not just cases 
of overzealous prosecutions, not cases that go off the track 
because of special prosecutors, but to notice that rigid 
sentencing rules particularly can often lead to extraordinarily 
long sentences. And I am quite honestly quite disappointed not 
so much with the grants that Clinton did, although some of 
those were very suspect and I think did undermine the rule of 
law, but disappointed there wasn't an effort to look more 
broadly at the justice considerations in play here.
    Mr. Smith. Thank you. By the way, the answer is there were 
39 individuals who were pardoned or whose sentences were 
commuted by President Clinton who had been charged with similar 
crimes.
    Mr. Rivkin, let me address my second question to you. What 
do you say to Mr. Cochran or what do you say to his client? 
There are obviously many instances where individuals have been 
pardoned and other individuals have not been pardoned who have 
been convicted of the same or similar crimes.
    What do you say to Mr. Cochran's client, what do you say to 
the convicted drug traffickers that were not pardoned by Mr. 
Clinton although he pardoned several dozen?
    What about the discrepancy there.
    Mr. Rivkin. I would say a couple of things, Congressman 
Smith.
    As I tried to explain in a very brief 5 minutes, there is 
something unique and distinctive about the pardon power. It is 
a particularly ill-suited area for growing precedence and 
lessons for the future. You do not form a case law by 
exercising pardon power.
    My view would be that while the President did not dwell on 
it in his remarks--and this actually is relevant to the 
question of the so-called ``Libby motion''--what he is really 
trying to say with the use of pardon power is not that it is 
inherently excessive to sentence somebody to 2\1/2\ years in 
prison when that person has a good family and has suffered 
enough and has not had enough prior offenses but that it was 
excessive in these circumstances.
    Everything that you do when you exercise a pardon power is 
what we lawyers call ``facts- and circumstances-specific.'' so 
I have absolutely no view as to the merits of that pardon.
    Mr. Smith. Mr. Rivkin, let me squeeze in a last question 
here.
    You said one of the reasons that you favored the 
commutation of Mr. Libby's sentence was that you felt that a 
special counsel should never have been appointed in the first 
place. Tell me why that is.
    Mr. Rivkin. Well, I tend to think that--and this is, again, 
whether you call them special counsels, independent counsels--
whenever you have--one was made, actually, a long time ago by 
Jesse Jackson. Whenever you have a prosecutor who is operating 
outside the normal bureaucratic and institutional constraints, 
it does not matter if it is a politically appointed prosecutor 
or a career prosecutor. The inherent exercise of prosecutorial 
discretion is skewed to the point where there is obsessive, 
never-ending, no-stone-unturned prosecutions. There is enormous 
pressure.
    I will tell you I was not a fan of Ken Starr's 
prosecutions, either.
    So it has nothing to do with whether or not it is a 
Republican or a Democrat. I think the decision to appoint a 
special counsel in a situation where the Department of Justice 
knew that the individual involved was not a member of the White 
House staff and who certainly was not a supporter of the war 
did not fit into any kind of narrative about this nefarious 
activity. It was ludicrous, frankly, to appoint a special 
counsel, and it was ludicrous to continue this investigation. 
It is unfortunate that it went on, and you cannot divorce these 
considerations from the sentencing and the conviction here, and 
that, to me, is a very, very serious matter.
    Again, not to dwell on matters pertaining to Mr. Berger, 
but we have two senior government officials who are accused of 
doing virtually the same thing, and one is a mess. The only 
difference is Mr. Berger was investigated by career attorneys 
in the Office of Public Integrity who decided not to prosecute 
him. That is a perfectly fine decision. Mr. Libby was 
prosecuted by special counsel. The disparity in their treatment 
is remarkable, and that is fundamentally unfair and unjust.
    Mr. Smith. Thank you, Mr. Rivkin.
    Thank you, Mr. Chairman.
    Mr. Conyers. Thank you.
    The Chair recognizes the Chairman of the Constitution 
Subcommittee, the gentleman from New York, Jerry Nadler.
    Mr. Nadler. Thank you.
    Let me comment first before I ask a few rapid questions.
    In response, I think, to a question by the gentleman from 
Texas, I think this is a very unique situation, not quite 
unique but it is a very unusual situation, comparable only to 
the pardons in the Iran-Contra situation. In that situation and 
in this situation, pardons were issued to former or to current 
government officials. There was confidence in the President who 
had engaged in wrongdoing with the pardons and in the situation 
in which their actions frustrated a legitimate investigation, 
and the pardons guaranteed to make sure that that investigation 
could go no further, investigations in each case of wrongdoing 
by the Administration and perhaps by the President himself.
    That makes those two cases--this one and the Iran-Contra--
quite different from Mr. Clinton's pardons or anybody else's 
pardons, in my view. To me, they undermine the functioning of 
government and the trust in government that we must have; and 
that is why they are particularly loathsome.
    Now, my questions are going to be really structured by Mr. 
Rivkin's statement. Mr. Rivkin stated a number of things. Let 
us go to number one.
    You said that the appointment of the special counsel is 
particularly regrettable since the senior DOJ officials knew, 
prior to tapping Fitzgerald, that the leak of Valerie Plame's 
name to syndicated columnist Mr. Robert Novak, that the 
ostensible basis for the investigation was affected by the 
Deputy Secretary of State, Dick Armitage, and that Fitzgerald 
either learned about the fact at the time he was appointed or 
shortly thereafter. And it appears that shortly after his 
appointment Fitzgerald also knew that the reason for the 
appointment, the alleged violation of the law by outing CIA 
agents, was in error since Ms. Wilson was not a covert agent 
within the meaning of that act. But the submission to the court 
by the special prosecutor specifically said that the 
investigation seeks to determine which Administration officials 
disseminated information concerning Ms. Plame to members of the 
media in spring 2003, the motive for the dissemination and 
whether any violations of law were committed in the process.
    While the initial reporting regarding Ms. Plame's 
employment was a column by syndicated columnist Robert Novak, 
the investigation of unauthorized disclosures is not limited to 
disclosures to Mr. Novak. So it was a broader investigation, 
which would seem to negate that point that you made. Moreover, 
the investigation seeks to determine whether any witnesses 
interviewed to date have made false statements, et cetera.
    Mr. Wilson--Ambassador Wilson, I should say--you also say 
in your statement that Ms. Plame was not a covert agent. Mr. 
Wilson, was Ms. Plame a covert agent?
    Mr. Wilson. Thank you, Congressman.
    Ms. Plame's actual name is ``Mrs. Wilson.'' Mr. Novak did 
not even get that part of his article quite correct----
    Mr. Nadler. Nor did I.
    Mr. Wilson [continuing]. But she has become ``Ms. Plame'' 
again thanks to Mr. Novak's article, and she accepts that.
    The case was referred by the CIA to the Department of 
Justice because the CIA believed that a crime had been 
committed. The special counsel has said repeatedly, both in 
representations to the court and publicly, that she was a 
classified officer who should have been protected under the 
relevant American law.
    My wife, Valerie Wilson, was a covert officer, a classified 
officer, a member of the Central Intelligence Agency, who 
served her country for 20 years both in covert positions and in 
nonofficial covert positions during the course of her career.
    Could I also just answer in response to the question raised 
by Congressman Smith?
    I took a look at pardons and other Presidential actions 
because my concern in this was whether or not the whole truth 
is coming out or whether or not the decision to commute was, in 
fact, part and parcel to a cover-up or to an ongoing 
obstruction of justice.
    The case that I really looked at was that of President 
Nixon's, who did not, in fact, pardon or commute the sentences 
of his senior White House staff, Mr. Haldeman and Mr. Ehrlich.
    Mr. Nadler. Thank you. Let me go further.
    You state, Mr. Rivkin, that in Mr. Libby's case Mr. 
Fitzgerald presented the jury with the following damning 
narrative--and, by implication, you are saying it is a false 
narrative--that there was a nefarious effort in the White House 
to destroy Joe Wilson's reputation, to punish him by allegedly 
hurting the career of his wife's, Valerie Plame--Valerie 
Wilson. These activities were part and parcel of the broader 
effort to sell the Iraq War to the American people.
    I believe this narrative to be fundamentally false if 
proved successful to the jury, and that is why these pardons 
were okay, because the whole thing was essentially wrong 
because of that false narrative.
    I must tell you that I think the evidence richly bears out 
that narrative, that the Vice President--we have in his own 
handwriting that he seems to have directed an effort to 
discredit--here, we have in the Vice President's own 
handwriting to call out to key press varying--saying the same 
thing about Scooter, not going to protect one staffer and 
sacrifice the guy who was asked to--I cannot read it--stick his 
neck in the meat grinder because of the incompetence of others.
    There seems to have been--it is clear from the record that 
Mr. Cheney, Mr. Rove, Mr. Libby, and others were engaged in 
talking to all sorts of reporters to get the word out that 
Valerie Wilson was the motivating factor behind Ambassador 
Wilson's trip in order to discredit Mr. Wilson.
    Mr. Wilson, is that a correct reading of the data?
    Mr. Wilson. I certainly believe so, Congressman. Indeed, 
Mr. Fitzgerald said in one of his comments that it was hard to 
conceive that there was not a conspiracy to discredit, punish 
and seek revenge. That may not be a literal translation, but I 
believe those are the words that he used, not necessarily in 
that order. Discredit, punish and seek revenge on Ambassador 
Wilson were the terms.
    Mr. Nadler. Mr. Chairman, can I have one additional minute?
    Mr. Conyers. No.
    Mr. Nadler. Okay.
    Mr. Conyers. I am not inclined for additional minutes.
    The former Chair of the House Judiciary Committee, Jim 
Sensenbrenner of Wisconsin.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    Let me say that I think this hearing today is a waste of 
time. Article II, Section 2 of the Constitution gives the 
President plenary power to pardon or to grant clemency. It is 
one of the few powers in the Constitution that is not 
reviewable, checked or balanced by the other two branches, 
similar to each House of Congress' power to establish their own 
rules of procedure. So, no matter what we do here today, the 
President will still continue to have his power to grant 
clemency, just as all of his predecessors and all of his 
successors have.
    Now, this Congress is rapidly becoming a ``do even more 
nothing Congress'' than the one in the last Congress that was 
criticized by my friends on the other side of the aisle. About 
80 percent of the laws that we have passed in the first 6 
months have been to rename post offices. Maybe we can slow down 
on that because there are not any more post offices left to 
rename after former colleagues or other notables in our various 
districts.
    It seems to me that what is going on here today is more 
braying at the moon by my friends on the other side of the 
aisle who spend more time looking into real or imagined 
misconduct on the part of the Bush administration rather than 
doing the job that we were elected to do.
    Now I will point out that on this Committee we have got 
jurisdiction over private bills. Sometimes we have passed out a 
lot. I do not like them, and on my watch we passed out very 
few, but every private bill is a way of bending the rules or of 
waiving rules to provide equity to people that the majority of 
the Congress decides to provide equity to. And what is being 
done when we consider a private bill is intrinsically, really, 
no different than when the President exercises his 
constitutional power to provide clemency to whomever he wants.
    Now, we have heard a little bit about process today and why 
this was different strokes for different folks. Mr. Adams, you 
know you are supposed to be the gatekeeper to look at pardon 
applications and to make recommendations which the President is 
free either to accept or to disregard or to not even talk to 
you about.
    I guess the one question that I want to ask, rather than 
prolonging this hearing, is that at the end of the Clinton 
administration, there were a bunch of pardons issued on his 
last day of office. I want to ask you if you were consulted on 
any of the four individuals who were granted clemency: Marc 
Rich, whose wife was a major donor to the Clinton Library; 
Roger Clinton, the President's half brother; John Deutch, his 
CIA Director; and our beloved former colleague, Dan 
Rostenkowski.
    Were you consulted on any of these; and, if so, which ones 
and how?
    Mr. Adams. Just to clarify, Congressman, Mr. Rostenkowski 
was not pardoned on the last day. His pardon was in December of 
2000. My office was not consulted on that one.
    Mr. Sensenbrenner. Okay.
    Mr. Adams. My office was not consulted on the Marc Rich 
pardon. We were not consulted on the Roger Clinton pardon.
    My only involvement with the pardon of Mr. Deutch was to 
provide some technical assistance on the morning of January 20 
on how they would prepare the pardon warrant for Mr. Deutch 
because he was pardoned for offenses that he had not actually 
been convicted of yet. He had entered into a plea agreement on 
January 19 that he would plead guilty to an information, which 
set out various charges, and Mr. Deutch's name is not on the 
master warrant that was signed by President Clinton. They 
apparently were considering him so late that his name did not 
make it onto the master warrant, so I was asked to provide 
technical assistance on how they would prepare the individual 
pardon warrant for Mr. Deutch, and I did that.
    Mr. Sensenbrenner. Maybe it would be a good idea for you to 
come up with some boilerplate language and just send it up to 
the White House for them to keep for posterity in case they 
need a rush job. Would that be accurate?
    Mr. Adams. I really am not going to comment on that.
    Mr. Sensenbrenner. You do not have to.
    Mr. Adams. You know, it is not terribly difficult 
draftsmanship to grant someone a full unconditional pardon.
    Mr. Sensenbrenner. I yield back the balance of my time.
    Mr. Conyers. Thank you.
    The Chair recognizes the gentleman from Virginia, the 
Chairman of the Subcommittee on Crime, Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Conyers. Would you yield just briefly to me?
    Mr. Scott. I will yield.
    Mr. Conyers. I was just reviewing the activities of the 
110th Congress, of the Judiciary and the 109th Congress; and 
the 110th Congress has passed to the House 37 measures--bills; 
and the 109th Congress has sent 15 during the period from July 
1, 2005, to July 1, 2007.
    I thank the gentleman for yielding.
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    I would also like to respond to whether or not this is an 
important hearing. This is not a hearing of whether the 
President has the power of pardon. Of course he does. This is 
just an oversight as to how he is using it, and we want to put 
this thing in context.
    The allegation that we are considering is that there was a 
scheme to punish Ambassador Wilson for telling the truth and to 
discourage others from doing the same thing. Now, what happens 
when people do not tell the truth and do not speak up?
    We are in a war today partially because no one was speaking 
up. Somebody must have known there were no weapons of mass 
destruction. Nobody said anything.
    Somebody knew that there was no connection with 9/11. No 
one said anything.
    Somebody had to have problems with Secretary Powell's 
testimony before the U.N.
    Somebody knew that when the Administration officials 
estimated the length of this war going in and they said 6 days, 
6 weeks, no more than 6 months, somebody must have had some 
problems with that.
    Somebody should have known that when the Administration 
came before the Budget Committee and said that we should not 
even bother to budget the war because it would not cost 
anything, that it would not cost enough to budget, somebody 
must have known that it was not true.
    Here we are investigating the U.S. Attorneys. There seems 
to be a pattern. If you do not follow a political line, you 
might get fired.
    This morning, the former Surgeon General was in the paper 
telling a congressional panel Tuesday that top Administration 
officials repeatedly tried to weaken or to suppress important 
public health reports because of political considerations. Why 
is he just speaking out now and not before? Because of what 
might happen. On January 29, 2006, climate experts at NASA 
tried to silence him; and when you have a situation like this 
when this is the scheme that is part of the pardon, we can see 
how important this is.
    Now, Ambassador Wilson, is there any question that this 
revealing of your wife's name might have endangered her life?
    Mr. Wilson. Congressman, the CIA would normally have 
prepared a damage assessment. Neither my wife nor I would have 
been made aware of that. It is very clear with respect to her 
own life and to her own security that there have been threats. 
Some have been credible, some have not been credible, and those 
have all been investigated.
    More to the point, the question arises, with respect to the 
compromise and to the betrayal of her identity, to what other 
national assets were betrayed and as to whether or not there 
was a threat to them.
    It has been written in a number of books that she was 
involved in counterproliferation activities. In other words, 
her responsibility was to ensure that nuclear weapons would not 
arrive on our shores. I would not comment on whether that is 
accurate or not but just refer you to the books.
    In fact, as a way of thinking about this, as soon as her 
identity is compromised, you make the assumption that every 
program, every project, every operation, every asset, every 
individual with whom she has come into contact either 
innocently or in the course of her professional activities have 
in one way or another been compromised.
    Mr. Scott. And this affected her career?
    Mr. Wilson. Yes, sir, it did. Once she became known as a 
CIA officer, she could no longer continue to do those things 
for which she had been trained and had been working for close 
to 20 years.
    Mr. Scott. Is there any question in your mind that this 
revelation was a direct result of your telling the truth about 
the yellowcake?
    Mr. Wilson. There is certainly no question in my mind, sir.
    Mr. Scott. Now, a lot has been said that Armitage was the 
one who informed Novak. Is there any question that others--did 
Libby actually reveal her name to a reporter?
    Mr. Wilson. During the course of Mr. Libby's trial, it was 
revealed that Mr. Libby, Mr. Armitage and Mr. Rove all were 
actively peddling her name to members of the press.
    Mr. Scott. Thank you.
    Mr. Adams, if they had gone through the normal process--
now, the President, finally, does not take issue with the fact 
that there was a violation of the code section. He just had 
problems in his public statements about the excessive 
punishment.
    If they had gone through the normal process, would you have 
caught the issue that supervised probation cannot take place 
without incarceration and avoid the spectacle of the 
President's saying and others' saying that the supervised 
probation will still remain? Would you have caught that and 
recommended something before that spectacle occurred?
    Mr. Adams. I think, Congressman, you are referring to the 
term of ``supervised release,'' which the President said he was 
leaving intact in his commutation order of decision.
    Mr. Scott. Would you have caught that?
    Mr. Adams. I am not sure what you mean by ``caught that.'' 
It is not uncommon, Congressman, for the President to commute a 
sentence of incarceration and leave intact a sentence of 
supervised release.
    Mr. Scott. Is that not a question now that the judge has 
suggested that you cannot do that?
    Mr. Adams. I think the judge has asked for opinions on it, 
and it is my understanding that the Justice Department--Mr. 
Fitzgerald's office--has filed a pleading, an answer, to that 
question.
    Mr. Scott. Cooperation is a factor in downward departure. 
Is there any expectation that Mr. Libby will now cooperate, 
particularly in light of the fact that the special prosecutor 
has represented that all in this situation is not known? Is 
there any suggestion that he may now start cooperating?
    Mr. Adams. I have had nothing to do with Mr. Libby's 
prosecution, and I really cannot----
    Mr. Scott. So that is not an expectation?
    Mr. Adams. I cannot answer the question, Congressman.
    Mr. Scott. Well, you are the only Administration witness up 
here. So, you know, it is the best we can do.
    Remorse is a factor in the downward departure. Based on 
what you know about his behavior, would he be entitled to a 
downward departure because of remorse?
    Mr. Adams. I do not know enough about the facts of the 
case. I do not know anything about the facts of that case.
    Mr. Conyers. The gentleman's time has expired.
    The Chair recognizes the distinguished gentleman from North 
Carolina, Howard Coble.
    Mr. Coble. I thank you, Mr. Chairman.
    It is good to have you all with us, especially my fellow 
North Carolinian.
    Mr. Rivkin, for what it is worth--it is probably not worth 
anything--but if I had been the United States Attorney and the 
Libby case were presented to me, I am confident that I would 
have declined prosecution, and you touched on some of those 
issues in your testimony.
    Ambassador, you touched on some of these in response to the 
gentlewoman from Virginia's questioning, but in your written 
statement, Ambassador, you indicate that the actions by the 
Vice President and by Mr. Libby, among others, caused untold 
damage to national security. Now, I am told that bipartisan 
inquiries and Mr. Libby's criminal trial did not demonstrate 
that. Now, if I am off course, bring me back on course.
    Mr. Wilson. Congressman, any time that a covert CIA 
officer's identity is betrayed, all of those assets and all of 
those programs and all of those projects and all of those 
people with whom that CIA officer has come into contact are 
presumed to have been betrayed as well.
    Mr. Coble. Well, I guess I am having trouble with ``untold 
damage,'' but we will visit that another day.
    Mr. Adams, it has been reported that the Libby commutation 
is the first instance in which commutation was granted prior to 
the recipient's appeal having been exhausted. Is this, in fact, 
accurate?
    Mr. Adams. No, sir. Do you mean historically or----
    Mr. Coble. Yes.
    Mr. Adams. No, sir, that is not correct.
    There was a commutation of a man named Arnold Prosperi, who 
was commuted on the last day of the Clinton administration. He 
had an appeal pending at the time.
    Mr. Coble. Okay. I cannot recall where I read this, but I 
read somewhere that this was a case of first impression, and 
you tell me it is not.
    Mr. Adams. There was another case.
    Mr. Coble. Yes.
    Mr. Adams. Prosperi's case was--he had an appeal pending, 
and his sentence was commuted----
    Mr. Coble. I have got you.
    Mr. Adams [continuing]. Back to home confinement in his 
case.
    Mr. Coble. Thank you, Mr. Adams.
    Now, Mr. Sandy Berger, President Clinton's National 
Security Advisor, his name has been mentioned two or three 
times, and I was going to pursue that. But it was disposed of, 
as best I recall, on a guilty plea, and I was going to ask 
about what appropriate punitive action would be in order, but I 
think I will save that for another day.
    Let me talk to Mr. Rivkin.
    Mr. Rivkin, apparently, a new motion--I think one of you 
has commented about this--called the ``Libby motion'' has 
surfaced by which defendants will argue for a downward 
departure because the recommended sentence is excessive.
    Are you aware of any instance in which a defendant has 
successfully argued for a reduced sentence based upon the 
commutation of a third party's sentence?
    Mr. Rivkin. I am not, Congressman. In fact, I would not 
begrudge defense counsel from utilizing any creative argument 
in the advance interests of your client, but I think it would 
be oddly frivolous, and the reason for it is the fundamental 
difference between the way the President exercises his 
constitutional authority to pardon somebody and the way that 
the judge is engaged in the sentencing authority. They are just 
apples and oranges, and it would be quite ludicrous, in my 
opinion. You can argue that, but it would be quite ludicrous to 
say, gee, the judge sentenced somebody within the range or in 
the middle of the range or in some other portion of the range 
of the sentencing guidelines, but there are some mitigating 
factors, and he did not take them into account.
    But as to the President's articulating, exercising an 
entirely different process--again, I have tried to be a little 
dispassionate about it. I was talking about different kinds of 
justice in my opening statement. It just has nothing to do with 
it. You cannot draw any implications, in or out, based on how 
the President exercises his pardon power, so those motions are 
going to be tried, and they are going to fail. I think they 
have no merit.
    Mr. Coble. Thank you, Mr. Rivkin.
    Mr. Chairman, do you award credit if I yield back my time 
prior to the red light's illuminating?
    Mr. Conyers. Always, without fail.
    Mr. Coble. I thank the Chairman.
    Mr. Conyers. Thank you.
    The Chair is pleased to recognize the gentlelady from 
Texas, the distinguished former Subcommittee Chairwoman on this 
Committee, Sheila Jackson Lee.
    Ms. Jackson Lee. Mr. Chairman, thank you very much.
    I thank the witnesses as well, and I particularly thank my 
Chairman for making this the most constructive Oversight 
Judiciary Committee that we have had in more than a decade, and 
I want to compliment him very quickly for matching legislative 
initiatives that have been passed with oversight. One of the 
criticisms of the past Congresses has been by the American 
people of the complete abdication of any responsibility of 
oversight.
    Let me quickly speak to the 800-pound gorilla that is in 
the room--and that is Marc Rich--and lay out some unique 
differences.
    One, the past President did pardon Mr. Rich. There was an 
expose of that, or an explanation, shortly thereafter. The 
point was made that there were experts who indicated that this 
should have been a civil case versus a criminal case. The 
company had already paid $200 million-plus; and the experts--
two tax attorneys--indicated, as I have said previously, that 
they thought that appropriate handling of tax matters had 
occurred.
    In addition, let me note for the record that staff members 
Podesta, Nolan and Lindsey said that they advised against it. 
We do not know what staff persons advised against it in the 
Bush White House, and the past President waived all executive 
privilege so that all of his staff could be questioned.
    I do not know, Mr. Chairman, whether we have gotten a 
waiver of all executive privilege, but I would venture to say 
on the record that we have not.
    Let me move quickly to the questions and to be able to pose 
this, having put the big 800-pound gorilla on the record, and 
to acknowledge why I am concerned.
    Mr. Wilson, I will ask about Ms. Wilson. As a woman, let me 
applaud and take great pride in her service. I thank you both 
for your service and what you are trying to do.
    I believe that this has to do with the lives that have been 
lost in this violent, misdirected and wrong-headed war. The 
tragedy of the Libby case is that we will not now be able to 
explore the violence of this war, the internal workings of the 
decision on this war, because we have now had a person who was 
a key element, along with the Vice President, on leading us 
into this misdirected, falsely designed war, and we now have a 
block because of this interruption by the CEO, the President of 
the United States, recognizing that he is using a 
constitutional power.
    My question, Mr. Wilson: We indicated that there certainly 
seems to have been the jeopardy of Ms. Wilson's life, but isn't 
it true, when you are covert, when you are classified, that 
there are many, many other principles that work with you? Do we 
even know the far range of those lives that may have been put 
in jeopardy by this horrific and, I think, vile act?
    Mr. Wilson. Thank you, Congresslady, for your comments 
about Valerie. I share your views about her service to our 
country; and let me also say, before I walked in today, I heard 
from your district that it has finally stopped raining----
    Ms. Jackson Lee. Thank you so very much. What a relief.
    Mr. Wilson [continuing]. Which is a good thing.
    I, obviously, cannot speak to the damage assessment. I know 
that Valerie was asked about all of her contacts and all of her 
projects and all of her programs, but, as you can imagine, all 
of this is compartmentalized, and she would have no reason to 
know and, therefore, neither she and, more particularly, I 
would not know.
    Let me also just say that, while the article that I wrote 
on July 6 was designed to alert my fellow Americans to what I 
believe were fundamental misstatements of facts in the 
President's State of the Union Address in making the 
justification for taking our country to war, this hearing, I 
believe, is really designed to determine the extent to which 
the President may have exceeded or may have used his 
commutation authority in order to engage in a cover-up and in 
an ongoing obstruction of justice.
    Ms. Jackson Lee. And if I may reclaim my time, only because 
of the shortness of time of my questions. I thank you for that 
answer.
    Let me quickly put on the record that Judge Walton 
indicated that he thought the evidence against Mr. Libby was 
overwhelming, but I want to go particularly to the Vice 
President and to the impact of the internal workings of the 
House. The only representative is the pardon attorney.
    It indicated that Mr. Bush uncharacteristically put himself 
into the details of this case. It also indicated--and I am 
reading from a Newsweek article that is quoting Fred Fielding, 
who indicated that, after great review, they were disappointed 
that the evidence against Mr. Libby was so strong that he had 
testified falsely.
    Let the record also reflect that he is charged and 
convicted of four counts.
    It also says that Mr. Cheney was very intimately involved.
    I want to ask, have you waived executive privilege and 
whether or not you can account for the involvement of Vice 
President Cheney in forcing the commutation of the sentence of 
Mr. Libby? I am asking. Can I get the gentleman to answer the 
question? I am asking Mr. Adams, please.
    Mr. Adams. Congresswoman, neither I nor my office had 
anything to do with the commutation for Mr. Libby. That is all 
I can say.
    Ms. Jackson Lee. Do you know anything about the executive 
privilege, whether the White House has waived that for us to 
ask the----
    Mr. Adams. I do not. If you would direct a letter to the 
White House, I will assume----
    Ms. Jackson Lee. And you know nothing about the----
    Mr. Conyers. The gentlelady's time has expired.
    Ms. Jackson Lee. I thank you, Mr. Chairman.
    Mr. Conyers. I just wanted the Committee to note that I 
have just had put in my hand a letter dated July 11, 2007, from 
the White House in which Fred Fielding, Counsel to the 
President, has indicated, ``We respectfully must decline your 
request that the President provide documents and testimony 
relating to the commutation decision and trust that the 
Committee appreciates the basis for this decision.''
    I ask unanimous consent to put it in the record.
    [The information referred to is located in the Appendix.]
    Ms. Jackson Lee. Thank you, Mr. Chairman, for that 
clarification.
    Mr. Conyers. You are welcome. Thanks for raising the point.
    The Chair recognizes the only former state--oh, I am sorry. 
Mr. Gallegly, the distinguished gentleman from California, is 
now recognized for 5 minutes.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Like Mr. Wilson, I am not a lawyer, but I have had the 
honor to serve on this Committee for, I think, 17 years; and it 
has been quite a ride. So sometimes you do not have the 
advantage of having been briefed in law school that you do not 
ask questions you do not know the answers to, so I may ask a 
question I do not know the answer to this afternoon, and I may 
even ask a question that I think I know the answer to, but I 
would like to start with Mr. Cochran.
    In listening to your testimony and in reviewing your 
testimony, I think it is clear to all of us that the principal 
focus in your testimony was relating to your client, Victor 
Rita. Is that a fair statement?
    Mr. Cochran. That is correct.
    Mr. Gallegly. Is it true, Mr. Cochran, that you argued to 
the Supreme Court that you believe that Mr. Rita's sentence was 
excessive?
    Mr. Cochran. That is correct.
    Mr. Gallegly. You also in your testimony today were making, 
maybe not identifying, the comparison as a mirror image that 
there were similarities that were very extreme or almost a 
mirror image would be a fair assessment; is that correct?
    Mr. Cochran. Yes, sir.
    Mr. Gallegly. Having said that, would you agree with 
President Bush's opinion that the sentence for Mr. Libby was 
excessive?
    Mr. Cochran. I do not know that I can comment, because I do 
not know the intricate facts of Mr. Libby's case.
    Mr. Rita's concern was more directed at the perception of 
unfair treatment more than anything else. In the Supreme Court, 
he put forth several arguments regarding personal 
characteristics of his background--his military service, his 
health condition, his military record--as possibilities for the 
Court to consider whether he should have a reduced sentence in 
weighing that against his conviction.
    In the Supreme Court, the Solicitor General argued against 
our position persuasively, convincing the Court that those were 
not things that mattered in Mr. Rita's case; and I think the 
best way to characterize Mr. Rita's concern is confusion. He 
brought his case to the Court based on personal background 
issues; and then, in reading the statements signed by the 
President in commuting Mr. Libby's sentence, the President 
mentions some of the very same personal characteristics and 
background in commuting Mr. Libby's sentence.
    Mr. Gallegly. Mr. Cochran, you said you really were not 
that familiar with Mr. Libby's case, but it is clear that you 
were familiar enough to weave him into your testimony today. Is 
that a fair assessment?
    Mr. Cochran. Yes, sir. Clearly, the two men faced the same 
charges. These charges came about during the same time period. 
They both have backgrounds in civil service. They are both 
family oriented men. There are some very obvious and common 
themes throughout.
    Mr. Gallegly. And you stand by your claim that Mr. Rita's 
sentence was really unreasonable and excessive?
    Mr. Cochran. That was our contention from the beginning.
    Mr. Gallegly. Mr. Cochran, have you ever filed a clemency 
petition for the Department of Justice on behalf of Mr. Rita?
    Mr. Cochran. I have not, sir.
    Mr. Gallegly. Okay. Do you anticipate that you will?
    Mr. Cochran. I have discussed that with Mr. Rita, and we 
have not come to a final decision on that issue yet.
    Mr. Gallegly. Have you sought alternatives for 
incarceration for other defendants who you have represented?
    Mr. Cochran. I have on one occasion.
    If I may ask the Congressman, is that in terms of clemency 
proceedings or other matters?
    Mr. Gallegly. Other alternatives, including clemency but 
not limited to it.
    Mr. Cochran. I have sought departure motions, what we 
characterize as ``3553(a) motions,'' to ask the sentencing 
court to forward these sentences. Yes, sir.
    Mr. Gallegly. Well, would you say then, in summary, while 
you have argued that Mr. Rita's sentencing was excessive and 
you have repeatedly mentioned, really, the real similarities in 
the two cases, that it could be conceivable by a reasonable 
thinking person that Mr. Libby's sentence was also excessive?
    Mr. Cochran. It could be. I am not taking issue with the 
commutation as such. Again, it is Mr. Rita's concern--it is 
more the perception of fairness.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Mr. Conyers. You are welcome.
    The Chair is pleased to recognize a former prosecutor from 
the State of Massachusetts, Bill Delahunt.
    Mr. Delahunt. I thank the Chairman.
    You know, Mr. Cochran, you are drawing comparisons here. 
Let me suggest this as a distinction, and I am not familiar 
with the facts of your case, but what your client did, I am 
sure, had an impact, but it was a limited impact. Is that a 
fair statement?
    Mr. Cochran. In what regard, sir?
    Mr. Delahunt. Well, in terms of its consequences.
    Mr. Cochran. I am sorry, sir. If I could get more 
clarification.
    Mr. Delahunt. Okay. Well, let me suggest this. What 
distinguishes, in my opinion, the Libby case is that, if one 
accepts the verdict and the testimony at the trial, one can 
conclude that this is really not about Ambassador Wilson, it is 
really not even about his spouse, but it is about influencing 
the decision to go to war; and I would suggest that that has a 
special burden on the perception of justice and on the gravity 
of what has occurred in terms of this commutation. Because I 
think that we can agree that the activities of the 
Administration to discredit Ambassador Wilson was maybe not 
necessarily ad hominem but to influence both the American 
public opinion and Members of Congress in terms of the 
authorization to go to war.
    What could be more severe? What could be more grave?
    With all due respect to your client and in the case of your 
client, Mr. Cochran, it was not about whether Members of this 
Committee and Members of this House would make a decision to go 
to war, and I have no doubt that many in Congress were 
convinced to vote for the resolution because of the statement 
by the President at the State of the Union Address. It had an 
impact on me.
    But let me put this to Ambassador Wilson. What impacted me 
was the omission--the omission--by Secretary of State Powell of 
the reference to the yellowcake uranium when he made his 
presentation a week later before the Security Council of the 
United Nations. Maybe it was just simply being an old 
prosecutor, just an old county prosecutor in a small, little 
place called Boston, Massachusetts, but something really smelt. 
Why? Why wouldn't the Secretary of State make this the 
centerpiece of his argument before the international body with 
the eyes of the world watching him? So it did have an impact at 
least on this particular Congressman.
    Ambassador Wilson, would you care to comment?
    Mr. Wilson. Well, thank you, Congressman.
    Certainly, in the months leading up to the March invasion, 
conquest and occupation of Iraq, one of the centerpieces of the 
President's--and indeed, the Administration's--defining of the 
threat to national security interests was that we could not 
afford to wait for the smoking gun to come in the form of a 
mushroom cloud. Now, while the ``use of force'' authorization 
was passed prior to the President's State of the Union Address, 
clearly, the rhetoric up to, including and beyond the State of 
the Union Address included that.
    With respect to Mr. Powell, he later said, of course, that 
he discarded the Niger claim, which was just one of many claims 
that were made, because it did not rise to his standards, and 
he later said we did not need----
    Mr. Delahunt. Can you repeat that, Ambassador Wilson? It 
did not rise to his standards a week later.
    Mr. Wilson. A week later. He later said--and I think this 
is quite----
    Mr. Delahunt. Let me interrupt you again, because I just 
want to make one other observation.
    With all due respect, Mr. Rivkin, the failure to appoint a 
special prosecutor, not an independent counsel--and I 
understand the distinction--I dare say would have infected the 
body politic in terms of the credibility of the investigation 
and subsequent prosecution. I cannot imagine a Justice 
Department, given the high-profile nature of this case, not 
having appointed a special prosecutor.
    I have to tell you this. I had heard of Mr. Fitzgerald's 
reputation. It came before this Committee, there was discussion 
about it, and I defended that appointment because of his 
reputation as a professional. I know he was appointed by a 
Republican President. I said, ``Justice will be done,'' and I 
think he did an outstanding job.
    Mr. Rivkin. May I respond at this point?
    Mr. Wilson. I am sorry. Can I just add one thing? Excuse 
me, Congressman.
    My understanding was that the appointment of Mr. Fitzgerald 
as special counsel came about as a consequence of Mr. 
Ashcroft's decision, the Attorney General, to recuse himself in 
the case because of a possible conflict of interest, which, of 
course, is what one does. But, again, I am not an attorney.
    Mr. Conyers. All right. I thank the gentleman for his 
questions.
    The Chair is pleased to recognize the distinguished 
gentleman from Florida, Mr. Ric Keller.
    Mr. Keller. Well, thank you, Mr. Chairman.
    As I have listened to you and others, it seems like this 
hearing boils down to three questions, and I want to walk 
through this.
    First, is there any evidence that this pardon or 
commutation of sentence was given to protect senior White House 
officials? Second, is this pardon consistent with other pardons 
or commutations? Third, is the action in commuting this 
sentence legal?
    So let me begin with the very first issue, and I would like 
each of the witnesses to listen carefully to my question 
because I am going to go down the line and ask each of you 
this. I am going to begin with you, Ambassador Wilson.
    Do you have any evidence whatsoever, based on your personal 
knowledge, that Scooter Libby threatened to implicate the 
President, the Vice President or Karl Rove if he was not given 
a pardon or a commutation?
    Mr. Ambassador.
    Mr. Wilson. I have no personal knowledge as an outsider to 
this. It is a question that I think is worth raising. Leonard 
Decof, one of the top 100 trial attorneys, historically has 
said that Ted Wells and the rest of Libby's defense team are 
experienced, competent trial lawyers. Ted, on opening 
statement, promised the jury they would hear testimony from 
Libby and from Cheney. Yet he never put either on the stand. 
His promise was not merely a miscue. I believe it was shot 
across the bow.
    Mr. Keller. I do not want to hear outside hearsay from what 
some lawyer said somewhere else. I am just looking for evidence 
and personal knowledge.
    So let me go to the next gentleman, and I guess we have--is 
it Mr. Adams?
    Do you have any evidence whatsoever, based on your personal 
knowledge, that Scooter Libby threatened to implicate the 
President, the Vice President or Karl Rove if he were not given 
a pardon or a commutation?
    Mr. Adams. Congressman, my office is in the Justice 
Department, and it was not involved in either the prosecution 
of Mr. Libby or the decision to----
    Mr. Keller. You have no such evidence?
    Mr. Adams. The answer is, I do not know anything about it.
    Mr. Keller. Mr. Rivkin, do you have any such evidence?
    Mr. Rivkin. I do not, but let me just say that I cannot 
conceive, even if you assume that there were some nefarious 
activities, the context in which----
    Mr. Keller. I am going to cut you off, because I only have 
a certain amount of time.
    Professor Berman, do you have any such evidence?
    Mr. Berman. No.
    Mr. Keller. Mr. Cochran, do you have any such evidence?
    Mr. Cochran. No, sir.
    Mr. Keller. Okay. The next question we have, is this pardon 
consistent with other pardons?
    I would make the argument in some ways that this pardon is 
not, in fact, consistent with other pardons or commutations. 
Scooter Libby was not the half brother of President Bush, 
unlike the situation with Bill Clinton's brother, Roger. 
Scooter Libby did not pay hundreds of thousands of dollars to 
the siblings of the First Lady, unlike the pardon-seeking, 
convicted felons who paid money to Hillary Clinton's two 
brothers successfully. Scooter Libby was not a fugitive who 
left to Switzerland after being charged with the largest tax 
increase or tax evasion scheme in history, unlike Bill 
Clinton's pardon of Marc Rich.
    Now, it has been said that perhaps some inconsistency is 
that DOJ guidelines were not followed in this case.
    Mr. Adams, you have testified that, essentially, DOJ 
guidelines are that you have to wait 5 years after you were 
imprisoned or, if there is no imprisonment, 5 years after you 
were convicted in order to seek a pardon and that this is 
merely advisory.
    Were the DOJ guidelines followed in the case of Marc Rich?
    Mr. Adams. No, sir.
    Mr. Keller. Were the DOJ guidelines followed in the case of 
Carlos Vignali?
    Mr. Adams. Mr. Vignali did apply for a commutation. He was 
eligible to apply.
    Mr. Keller. In fact, that was strongly opposed by DOJ, was 
it not?
    Mr. Adams. I cannot tell you what the Justice Department 
said about that.
    Mr. Keller. I can tell you that it was.
    Were the DOJ guidelines followed in the case of the 
Gregorys?
    Mr. Adams. The Gregorys were eligible to apply for pardons, 
and they did so.
    Mr. Keller. And that also was opposed by the Department of 
Justice?
    Mr. Adams. Once again, Congressman, I am sorry. I cannot 
comment on what we said in that case.
    Mr. Keller. I can tell you that it was.
    The next issue I want to talk about is the legality of the 
pardons or the commutations, and this has been questioned. In 
fact, it has been questioned by none other than the Clintons. 
President Bill Clinton said recently that this Administration 
believes that after hearing of this commutation that the law is 
a minor obstacle. Hillary Clinton said that this has elevated 
cronyism over the rule of law, questioning it.
    So just to be crystal clear on the legality of this, 
Article II, Section 2 of the Constitution expressly provides, 
``The President shall have power to grant reprieves and pardons 
for offenses against the United States except in cases of 
impeachment.''
    Now, the Supreme Court is the ultimate arbiter of the 
Constitution, and the Supreme Court has expressly held--and I 
quote--``The pardon power flows from the Constitution alone, 
not any legislative enactments, and cannot be modified, 
abridged or diminished by the Congress.''
    Do you have any evidence, Mr. Adams, that the Constitution 
in this case was not followed by the President of the United 
States?
    Mr. Adams. The President clearly had the authority to 
commute Mr. Libby's sentence, Congressman.
    Mr. Keller. When we talk about Justice Department 
guidelines, those are purely advisory, and they are not binding 
in any way on the President; isn't that correct?
    Mr. Adams. Yes, sir. As I said in my prepared statement, 
that is the case.
    Mr. Keller. Thank you.
    I yield back the balance of my time.
    Mr. Conyers. Thank you.
    The Chair recognizes the distinguished gentleman from 
Florida, Robert Wexler.
    Mr. Wexler. Thank you, Mr. Chairman.
    I, too, want to thank you for holding today's hearings. It 
seems evident to me that the President's decision to commute 
Scooter Libby's 30-month prison sentence is egregious. It 
rewards loyalty above the rule of law. It encourages future 
acts of obstruction of justice. As a result, yesterday, I 
introduced H.Res. 530 with my Judiciary colleagues--Congressman 
Cohen, Congresswoman Jackson Lee, Congresswoman Baldwin, and 14 
additional Members of Congress--to censure President Bush and 
to condemn this unconscionable abuse of power which began with 
the Administration's falsifying of intelligence on Iraqi 
nuclear capabilities.
    After a month-long trial, Scooter Libby was found guilty by 
a jury of his peers of very serious crimes: four counts of 
perjury, of obstruction of justice and of making false 
statements to FBI investigators. Mr. Libby's criminal actions 
obstructed the Federal investigation into the White House's 
failure to comply with an executive order mandating the 
protection of classified national security information. It is 
clear that the perjury of Mr. Libby was designed to do one 
thing and one thing only, to protect President Bush, to protect 
Vice President Cheney and other Administration officials from 
further scrutiny regarding the coordinated political 
retaliation against former Ambassador Wilson and his wife.
    President Bush's commutation of Mr. Libby's 30-month prison 
sentence is an egregious abuse of the President's clemency 
power, and it could only be described as politically motivated 
quid pro quo to reward Libby for halting further investigation 
into the White House's failure to protect the confidential 
identity of a CIA operative.
    Despite President Bush's assertion that Mr. Libby's 
sentence was excessive, the record shows that it was not. The 
30-month prison term imposed by Judge Walton is supported by 
the Federal sentencing guidelines. Indeed, under the Federal 
sentencing guidelines, those who commit perjury and who 
successfully obstruct justice--as did Mr. Libby--actually 
lengthen the prison term, not shorten it.
    Not only is Mr. Libby's sentence supported by the Federal 
sentencing guidelines, but a similar sentence in a similar case 
involving perjury was recently upheld by the United States 
Supreme Court in Rita versus the United States.
    In fact, President Bush's position that the commutation was 
needed because of the excessive nature of Mr. Libby's sentence 
is intellectually dishonest. If the President truly believed it 
was excessive, he could have commuted Mr. Libby's sentence 
after Mr. Libby had served 12, 18, 20 months or whatever 
sentence the President deemed appropriate. Commuting it before 
Mr. Libby served even 1 day in prison proves that the length of 
sentence was not the President's real concern.
    While the President has the constitutional authority to 
commute an individual sentence, it does not mean that Congress 
must sit by and give tacit approval when a President unjustly 
exercises that authority. Congress must go on record against 
the President's actions. Censure, in my mind, would be a strong 
statement to the President from Congress and from the American 
people that his decision to reward loyalty above the rule of 
law is wrong and will not be tolerated.
    Mr. Berman, you had testified, I believe--and I just want 
to make sure this is clear for the record--that President Bush 
said his reason for using the commutation was that the sentence 
was excessive.
    Isn't it true that if, in fact, that were the President's 
reason that he could have commuted Mr. Libby's sentence after 
Mr. Libby served 12 months or 16 months or whatever time the 
President deemed appropriate?
    Mr. Berman. That is absolutely right.
    My understanding, too, is that he could have also commuted 
it to a lower sentence even before that time had started but 
used that as the alternative to put in place a sentence that 
the President may have thought more appropriate. One of the 
useful analogies here might be some other very high-profile 
cases involving other prominent people who were found guilty of 
perjury and obstruction of justice in the Federal system.
    I think particularly of Martha Stewart, whose case was all 
the rage in the papers and was an issue that I followed 
closely; also of the well-known rapper, Lil' Kim. Both of them, 
I believe, served 10-month terms for, obviously, not exactly 
similar crimes but of similar kinds of misstatements to 
investigators. And it strikes me that, to the extent that we 
are talking about equity and fairness, if the real goal were to 
bring Mr. Libby's sentence in line with the President's 
conception of equity and fairness, he might have looked more 
directly to some other high-profile cases in which the rule of 
law was upheld.
    Mr. Wexler. So let me understand this, Mr. Berman. What you 
are saying is that the President could have done at least one 
of two things if he really believed the sentence to be 
excessive. He could have let Mr. Libby serve a period of time 
and then could have commuted his sentence, or he could have 
even commuted his sentence downward now and have let Mr. Libby 
serve 12 months, 16 months or whatever it is the President 
thought appropriate.
    Mr. Berman. That is correct.
    Mr. Wexler. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much.
    The Chair is now pleased to recognize the only former 
Attorney General who we have in the Congress, Mr. Dan Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    You and I go back a long ways on this Committee, and I have 
great respect for you. I must say, however, that this hearing 
is one that troubles me very much.
    We now have had, by my count, since your party has taken 
over, a minimum of 300 investigations within the first 100 
days, investigation after investigation after investigation. So 
far today, we have heard of Iran-Contra. We have heard of 
Nixon, Haldeman and Ehrlich. I am wondering what is next. 
Nixon's dog, Checkers? Maybe Sherman Adams' vicuna coat?
    To put it on the record, it is true, as was suggested by 
the gentleman from Florida, that the President could have done 
other things, but he did not, and the big difference is he is 
the President and you are not, and he made the judgment to 
exercise his constitutional authority in the way he did.
    I would like to put on the record one piece of evidence 
that has not been presented on the record, and that is of Mr. 
Rita's case. The recommendation in the pre-sentence report was 
that he get 33 to 41 months, and he got 33, the lower end of 
the recommendation of the pre-sentence report. In Mr. Libby's 
case, it was recommended that he get between 15 and 21 months, 
and he got 30 months, which is double the lower end of the 
recommendation.
    Now, Mr. Chairman, I remember very well the Committee's 
Christmas party that we had, and I remember at that time that 
the only celebrity you introduced at that time was Ambassador 
Wilson. So I was wondering when we were going to have a hearing 
so that we could, once again, have this story told, and I did 
not know it was going to take this long.
    Mr. Wilson, let me ask you: Are you able to name any person 
who ever told the White House officials that your wife's status 
was covert?
    Mr. Wilson. Congressman, first of all, thank you for 
referring to me as a ``celebrity.''
    Mr. Lungren. No. No. I understand that, sir, but I only 
have a few minutes. So can you answer that question?
    Mr. Wilson. I am not a celebrity. I am just simply a 
citizen of this country, and when you talk about the CIA in 
this----
    Mr. Lungren. Sir, I just asked you a question.
    Are you aware of anybody who ever told the White House 
officials that your wife's status was covert before Scooter 
Libby made his revelation?
    Mr. Wilson. I am not aware.
    Mr. Lungren. Okay. Isn't it true that, at the trial, there 
were several CIA witnesses who testified that they did not know 
that your wife's status was covert?
    Mr. Wilson. That is possible. I have not reviewed the 
testimony for that.
    Mr. Lungren. The Washington Post said this:
    ``Mr. Wilson was embraced by many because he was clearly 
and publicly charging that the Bush administration had twisted, 
if not invented, facts in making the case for war against Iraq. 
Conversations with journalists are in the July 6, 2003, Op-Ed. 
He claimed to have debunked evidence that Iraq was seeking 
uranium from Niger. It was suggested that he had been 
dispatched by Mr. Cheney to look into the matter and alleged 
that his report had circulated at the highest levels of the 
Administration. The bipartisan investigation by the Senate 
Intelligence Committee subsequently established that all of 
these claims were false and that Mr. Wilson was recommended for 
the trip by his wife.''
    Do you disagree with that?
    Mr. Wilson. Profoundly, Congressman.
    Mr. Lungren. Is The Washington Post part of the conspiracy 
against you and your wife?
    Mr. Wilson. I have not asserted that.
    Mr. Lungren. Well, does that mean that reasonable people 
could differ with respect to conclusions that you have drawn?
    Mr. Wilson. It means you cannot always believe what you 
read in the press, sir.
    Mr. Lungren. I see. So reasonable people cannot disagree 
with your conclusions?
    Mr. Wilson. Congressman, on October 1 of 2002--or October 
2--the Deputy Director of Central Intelligence testified to the 
Senate Intelligence Committee that one of the areas where we 
believe the British have stretched the case beyond where we 
would stretch it is uranium sales from Africa to Iraq. Within 3 
days, the Director of the Central Intelligence had said that 
twice or three times to the White House. Mr. Hadley later 
submitted his resignation because, in fact, he had lost those 
documents.
    Mr. Lungren. Okay.
    Mr. Wilson. The day after my article appeared, Congressman, 
the White House acknowledged that the 16 words do not rise to 
the level of inclusion in the State of the Union Address; and, 
by the end of the month, the National Security Advisor had 
apologized or had expressed her regrets on a PBS newscast.
    Mr. Lungren. Let me ask you this:
    According to the Rob Silverman report, the national 
intelligence estimate at the time of the State of the Union 
concluded that Iraq was, quote, ``vigorously trying to procure 
uranium or/and yellowcake from Africa,'' end quote. The report, 
itself, found that, quote, ``the CIA analysts continued to 
believe that Iraq was probably seeking uranium from Africa,'' 
unquote.
    The bipartisan Senate Intelligence Committee report said 
that, at the time of the State of the Union, quote, ``the CIA 
and Iraq nuclear analysts and the Director of WINPAC still 
believed that Iraq was probably seeking uranium from Africa.'' 
That is from the intelligence report at page 66.
    Finally, the Butler report in Great Britain called the 
President's statement in the State of the Union Address, quote, 
unquote, ``well-founded.''
    The bipartisan Senate Intelligence Committee report said at 
the time of the State of the Union, quote, ``CIA and Iraq 
nuclear analysts and the Director of WINPAC still believed that 
Iraq was probably seeking uranium from Africa.'' That is from 
the report at page 66.
    Finally, the Butler report in Great Britain called the 
President's statement in the State of the Union Address, quote/
unquote, ``well founded.'' Doesn't that suggest that there are 
other conclusions that can be drawn from the facts other than 
yours?
    Mr. Wilson. Certainly, Congressman.
    Mr. Lungren. People that draw other conclusions aren't 
necessarily making falsehoods.
    Mr. Wilson. Congressman, that is entirely possible. Let me 
just suggest, as I said in my article, that mine was one of 
several reports that were done at the time in subsequent 
testimony, all of which reached the same conclusions. I also 
just say once again for the record that the Director of Central 
Intelligence and his deputy testified both to Congress and 
offered their recommendations and went to great lengths to try 
and remove this from any speech, and The Washington Post 
reported in January that in response to a Pentagon question the 
National Intelligence Officer circulated a memorandum to the 
government and Vice President in which the NIO said the 
allegations that Iraq sought uranium from Niger are baseless 
and should be used.
    Mr. Lungren. That is from The Washington Post.
    Mr. Wilson. That was a Washington Post article.
    Mr. Lungren. Which also said on March 7, 2007, the trial 
has provided convincing evidence that there was no conspiracy 
to punish Mr. Wilson by leaking his wife's identity and no 
evidence that she was in fact covert.
    Mr. Wilson. I would refer you----
    Mr. Lungren. The same folks that you were referring to for 
your----
    Mr. Wilson. I would refer you to Mr. Fitzgerald's statement 
that it is hard to see there was not a conspiracy to defame, 
punish or discredit, seek to punish Ambassador Wilson.
    Mr. Conyers. The gentleman's time has expired. The Chair is 
pleased to recognize the distinguished gentleman from 
Tennessee, Steve Cohen.
    Mr. Cohen. Thank you, Mr. Chairman. Mr. Adams, what is the 
criteria or standard that you use, if any, to recommend or not 
recommend a pardon or commutation to the President?
    Mr. Adams. Let me describe the usual standard for pardon 
first. One, it is acceptance of responsibility.
    Mr. Cohen. I understand those things, but is there an 
equitable standard, a standard that is equity or some clear and 
convincing, do you have any standards at all?
    Mr. Adams. The standard is that we need to be convinced 
that this person is deserving of a pardon, by fairly clear and 
convincing evidence.
    Mr. Cohen. We talked about, I think it was Mr. Scott was 
asking you about probation and if you could have probation 
without jail time hanging over your head. Let's assume that the 
commutation has been given, he is going to have probation and a 
fine. What if he violates his probation, what is his penalty?
    Mr. Adams. Actually, I think the sentence is a term of 
supervised release, Congressman. If a person violates 
supervised release, it can be revoked and he can be imprisoned.
    Mr. Cohen. Even if his sentence has been commuted?
    Mr. Adams. I think so. Let me get back.
    Mr. Cohen. The sentence has been commuted. You send him to 
go back to work for Vice President Cheney? What could you do?
    Mr. Adams. I don't have any knowledge about the decision in 
Mr. Libby's case. I am not going to comment on that.
    Mr. Cohen. All right. There seems to be somewhat divergence 
on this panel. The Republicans have said that the Democrats are 
howling because they are bringing up deeds that the Republicans 
have done, at least the President and the Vice President may 
have done, and yet the Republicans are somewhat howling when 
they bring up President Clinton. And two wrongs don't make a 
right and there have been abuses I think of this system over 
the years. It has been said by Mr. Keller that this is in the 
Constitution. Of course that is incorrect because we can 
propose the Constitution be amended. And we just had our Fourth 
of July holiday whereby we celebrated the fact that we didn't 
have a king, we had a democracy. We had checks and balances. 
This power is a vestige of the king.
    I know Mr. Rivkin said it is for equity and that the 
Founding Fathers got together and discussed it. Well, the 
Founding Fathers were great guys, but they were all kind of 
close to whoever the President was going to be. Kind of inside 
baseball, in a way.
    In 1977, there was a problem in Tennessee, we had a 
Democratic Governor that was issuing pardons and it was 
questionably illegal. At the time we had a constitutional 
convention, of which I served as Vice President, and I 
suggested we should limit the power of pardon. And to say that 
the Supreme Court--it didn't pass, but the Supreme Court by 
four out of five members of the Tennessee Supreme Court would 
say that a pardon shouldn't be issued because it would be 
harmful to justice, that there should be a check.
    What would be wrong with a constitutional amendment to 
suggest that any pardon or commutation by the President would 
have to go to the Supreme Court or some other body, let's say 
the Supreme Court for now, Mr. Adams, and say six out of nine 
of the Supreme Court members would have to affirmatively say 
this should not be issue because it will be helpful to the 
public's respect for the law or is unfair or unjust? Would that 
be an improvement on the system of justice, a continuation of 
our revolution of 231 years ago, or do you think the President 
should have this power of a king?
    Mr. Adams. I would just answer your question on two levels. 
It strikes me as a matter of constitutional law, the 
Constitution probably could be amended along the lines that you 
just suggested if you went through the proper procedure to do 
that. Whether that is a wise idea or not, I have no comment on 
that.
    Mr. Cohen. Mr. Cochran, Mr. Berman, Ambassador Wilson. Mr. 
Rivkin is I am sure going to be against it. Any thoughts?
    Mr. Berman. Candidly, I would be disappointed with any 
rigorous substantive review because the President's power here, 
though I think it is right to accurately describe it as king-
like, is a power to show mercy. I fear and much of my 
scholarship is about the failure of----
    Mr. Cohen. What if it doesn't show mercy, when it is to 
cover up a crime, take care of one of your cronies or take care 
of a political contributor or somebody that has paid somebody 
in your family. That is not mercy. So shouldn't six of the nine 
justices go, hey, the Berman rule hadn't been met. Wouldn't 
that be okay?
    Mr. Berman. I certainly like anything that suggests a 
Berman rule is put in place. That said, I think this oversight 
hearing is a perfect example of the opportunities that exists 
to in a sense push back, and, again, developed more fully in my 
testimony, I would welcome efforts short of a constitutional 
amendment. I think a constitutional amendment is not only very 
difficult to achieve but sends an extraordinarily broad 
statement about our country's values. And, fundamentally, and 
this is why I myself have written about our country's values, 
safeguarding liberty, and the concept of mercy. And candidly, 
and this is again something that I have spent a lot of time 
thinking about. What worries me most is not the fact that Mr. 
Libby alone got a commutation but that this President has 
pardoned more turkeys at Thanksgiving than he has shown mercy 
with respect to other offenders in our Federal criminal justice 
system.
    And so though I can understand this Committee's concern and 
the having of an oversight hearing to look very, very closely 
at this particular commutation, the way I am inclined to make 
lemonade out of that lemon is to notice and in some sense hold 
the Administration's feet to the fire that if these are 
principles that should be vindicated in Mr. Libby's case, that 
other defendants, Mr. Rita with his years of military service 
on behalf of this country, the border agents whose cases led to 
calls for some sort of clemency action in the service of their 
country, that there be more of an effort by this Administration 
to exercise that its own Justice Department can make mistakes 
and that there be a more rigorous effort to convince the people 
of this country that it is not just those inside the Beltway 
who get the benefit of the President's compassion and that 
every member of our country can get eaten up by an overzealous 
criminal justice system and should get the opportunity to plead 
to the executive and have those pleas taken very seriously, 
that justice and mercy ought to come to bear in their case.
    Mr. Conyers. The gentleman's time has expired. I thank you. 
The Chair is pleased to recognize Chris Cannon, the gentleman 
from Utah, who is the Ranking Member on the Commercial and 
Administrative Law Committee.
    Mr. Cannon. I thank you, Mr. Chairman, and thank you for 
the time. I just want to say, Mr. Berman, that I actually agree 
very much with what you are saying; that is, that the nature of 
prosecution in America is so fundamentally different from the 
executive branch that you can't merge these two and that we 
probably ought to have a more aggressive approach in the 
executive branch to overseeing the kind of excesses that 
sometimes happen with prosecutors.
    This Committee I think should be fairly familiar with some 
of those prosecutions. And in fact I just want to--actually, I 
want to thank Mr. Cohen for making the point of brothers or 
relatives and cronies, which I take is a reference, bipartisan 
reference from this bipartisan Committee to the fact that 
President Clinton gave some very questionable pardons.
    First of all, Mr. Chairman, I would like to ask unanimous 
consent to have included in the record a story from The 
Washington Post dated March 7, 2007, entitled the Libby Verdict 
and the Minority Views from the Senate by Vice Chairman Bond 
joined by Senators Hatch and Burr.
    Mr. Conyers. Without objection, so ordered.
    [The information referred to is located in the Appendix.]
    Mr. Cannon. Thank you, Mr. Chairman. I have a love-hate 
relationship with The Washington Post. I hate it because it 
tends to be left, and I hate it because they are smart and they 
tend to hurt the right when they go left. On the other hand, 
the fact that they are smart makes them readable and 
interesting, and this article I think is profound because it 
punctures some balloons here.
    There is, I think, no question about their saying that Mr. 
Libby did something wrong, but they are trying to balance 
things and they say relatively eloquent in what they are trying 
to balance. What they are essentially saying is we have a myth 
here, and that myth, Mr. Chairman, has been repeated by you and 
by Mr. Nadler and Mr. Wexler and by others on your side, and it 
goes to this nefarious activity of blaming or hurting or going 
after personally Mr. Wilson. In the process of that they lay 
out the myths that we have heard here today. Let me just go 
through those.
    One is that Mr. Wilson was embraced by many because of his 
early publicly charging the Bush administration twisted if not 
invented facts, action in making the case for war against Iraq. 
In conversations with journalists in his op ed he claimed to 
have debunked evidence that Iraq was seeking uranium from 
Niger, suggesting that he had been dispatched by Mr. Cheney to 
look into the matter and alleged that his report had been 
circulated at the highest levels of the Administration.
    It goes on to say that essentially--concludes that what was 
established out of all this was that all these claims were 
false. In other words, the left Washington Post calls Mr. 
Wilson, who is here today, a liar. They are saying he is not 
true, he is not telling the truth about this.
    The article points out the other myth that is here before 
us today, that somehow, as I recall, I think we have referred 
to this as a slip of the tongue on the part of Mr. Libby or was 
it rather a nefarious scheme to out and hurt Mr. Wilson. Well, 
the article points out it was Richard Armitage and that the 
trial provided convincing evidence that there was no conspiracy 
to punish Mr. Wilson by leaking Ms. Plame's identity, but that 
would be Ms. Wilson's identity, and no evidence that she was in 
fact covert.
    Then in conclusion, the article says Mr. Wilson's case has 
besmirched nearly everyone it has touched. The former 
Ambassador will be remembered as a blow hard. Mr. Cheney and 
Mr. Libby were overbearing in their zeal to rebut Mr. Wilson 
and careless in their handling of classified information and 
Mr. Libby's statements were reprehensible. Mr. Fitzgerald has 
shown again why handing a Washington political case to a 
Federal prosecutor is a prescription for excess.
    That is why we are talking about and why Mr. Berman is 
suggesting we need to have a greater intervention by the 
President.
    Now, Mr. Wilson, your wife has given inconsistent testimony 
to the Senate and the House. I take it in your zeal for getting 
the truth out you would encourage her to come to the Committee 
on Oversight and Government Reform, which is evaluating that, I 
think there is a letter from the Ranking Member asking the 
Chairman, Mr. Waxman, to review that. I would take it given 
your zeal for truth and getting it all out you would encourage 
her to come and meet with staff of the minority and majority 
and discuss these matters, would you not?
    Mr. Wilson. Congressman, thank you for your questions and 
your comments. I am a part time resident of your State, not of 
your district, and my condolence to those of your constituents 
who are suffering----
    Mr. Cannon. Thank you. I have limited time.
    Mr. Wilson. The purpose of testifying is in fact to try and 
get----
    Mr. Cannon. Would you encourage your wife----
    Mr. Wilson. My wife has testified truthfully to the best of 
her ability to everybody who has asked her.
    Mr. Cannon. Yet there were substantial inconsistencies, you 
acknowledge that.
    Mr. Wilson. I don't believe there were inconsistencies.
    Mr. Cannon. The record shows inconsistencies. Would you 
encourage her to come and clarify those inconsistencies?
    Mr. Wilson. Congressman, I don't believe that she was 
inconsistent in her testimony, neither does she. She testified 
truthfully, honest and the best of her ability to the Senate 
and the House.
    Mr. Cannon. Would you tell us whether or not you will 
encourage her to come?
    Mr. Wilson. I have said to her, as I said to you, as I said 
to Mr. Davis the other day in the House dining room, we are 
prepared to answer any and all legitimate questions that any 
Member of this or the other body might have, Congressman.
    Mr. Cannon. Or the Committee on Oversight and Government 
Reform.
    Mr. Wilson. Either body, yes, sir.
    Mr. Cannon. Thank you very much, Mr. Chairman. I see my 
time has expired and I yield back.
    Mr. Conyers. I thank you. The Chair would inquire of 
Ambassador Wilson, in all fairness, did he want to make any 
additional responses to our colleague from Utah?
    Mr. Wilson. Well, with respect to some of the things that 
were in the SSCI, part 2 report, it perpetuates a number of the 
myths that have been part of this story from the beginning.
    First of all and foremost is the allegation that somehow I 
have asserted that the Vice President sent me on this trip. If 
you go back and you look at the testimony that was introduced 
in the trial and in the run-up to the trial, you will find that 
there were three articles that the Vice President and his staff 
were most focused on at the time that they launched this effort 
to, as Fitzgerald said, punish,
    defame and discredit. One was the Nick Kristof article, one 
was the Walter Pincus--one was the Spencer Ackerman article, 
Walter Pincus article, and the fourth was my article.
    I have actually gone back and taken a look at those 
articles and they all say very clearly that it was the Office 
of the Vice President that asked the question, which of course 
is what my wife testified to when she testified to the 
Government Oversight Committee.
    The other one of course is the assertion that somehow I was 
running around saying that I had debunked it. If you take a 
look at my article of July 6, which regrettably was not 
included in the SSCI report but should have been made a part of 
it, I believe, since they devoted 17 pages to discussion of 
this particular issue, I said in my meeting with the Ambassador 
who was resident there in Niger that she had said she thought 
she had debunked the particular issue.
    So those are a couple of comments.
    Mr. Conyers. I thank the gentleman. Mr. Johnson, would you 
mind if Mr. Davis goes first? He has got a little time problem.
    The Chair recognizes the gentleman from Alabama.
    Mr. Davis. Thank you, Mr. Chairman, for your indulgence. 
Let me pick up on some comments that the President of the 
United States made when he was the Governor of the State of 
Texas. President Bush wrote a book called A Charge to Keep in 
1999 when he was traveling the country talking about his 
efforts to be elected President and he had occasion in the book 
to make some comments about the standards that he uses to 
commute sentences, and he made the following comments, quote, 
``I don't believe my role is to replace the verdict of a jury 
with my own unless there are new facts or evidence of which the 
jury was unaware or evidence that the trial was somehow 
unfair.''
    The President on another occasion said in this same book: 
My job is to ask two questions, is the person guilty of the 
crime, and did the person have full access to the courts of 
law? And of course he meant two questions as to when he would 
use his power of commutation.
    And let me just ask the panel, to your knowledge, any of 
you, has the President of the United States raised any question 
of there being new facts that have come out regarding the Libby 
case since the sentence? Does anyone know of the President 
referring to any new facts that have come out, any member of 
the panel?
    Mr. Wilson. No, sir.
    Mr. Davis. I think all witnesses are shaking their heads 
negatively. Does anyone know of the President suggesting that 
the trial was somehow unfair in any way? Has the President made 
any statement that the Libby trial was unfair in some way? 
Again, all Members are shaking their heads negatively.
    The judge in this case, Judge Walton, was appointed by 
President Bush, is that correct? The prosecutor in this case 
was a Republican appointee of President Bush, is that correct? 
You are all nodding your heads affirmatively. I even recall 
that when the Republican Party in Illinois was desperately 
searching for an alternative to Mr. Obama that Mr. Fitzgerald 
was approached about being the Republican nominee by Mr. Rove.
    Every now and then people make comments during campaigns 
and they change their minds and they evolve in office. So let's 
look at the record and see if President Bush has changed his 
mind at all about his standard for commutations.
    Mr. Adams, 4,000 petitions for commutation during the last 
6 years and so many months, 3 granted. By the way, is that 3 
counting Libby?
    Mr. Adams. Mr. Libby makes the fourth.
    Mr. Davis. Mr. Libby makes the fourth. Four out of 4,000. 
In fact, did Mr. Libby actually submit a request for 
commutation, Mr. Adams?
    Mr. Adams. Not to my office, no, sir.
    Mr. Davis. There are at least 4,000 individuals who did. 
Mr. Berman, let me pick on something that has not come out in 
the hearing today. A lot of people ask the question, Mr. 
Rivkin, you asked the question or raised the issue, why not 
just grant the pardon? Why engage in this business of a 
commutation? A lot of people have said to the President, Mr. 
President, have the courage of your convictions and grant a 
pardon.
    Mr. Berman, do this analysis for me. If the President had 
granted a pardon, that might have subjected Mr. Libby to being 
subpoenaed to testify before this or some other Committee, is 
that correct, Mr. Berman?
    Mr. Berman. I think that is possible. Sentencing is my 
specialty. The way that clicks together is beyond----
    Mr. Davis. You tell me as a lawyer if you agree. If 
President Bush had granted a pardon, Mr. Libby could not then 
have invoked the fifth amendment if he had been called before 
this Committee, is that correct?
    Mr. Berman. I think that is probably right, although, 
again, that is out of my field of expertise.
    Mr. Davis. I understand. It is my understanding that is 
correct and I am sure Mr. Rivkin will tell me if I am wrong. If 
I can finish my questions.
    So one effect of this commutation I would submit is that it 
has had the effect of immunizing this individual from ever 
being called to testify. That is one effect of the commutation 
in this instance. That ought to be worrisome to the Committee 
because it suggests one very simple thing, if the President had 
given a pardon, instead of you all being here, as much as we 
have enjoyed you, I think we would all have rather heard from 
Scooter Libby on a variety of things.
    If a pardon had been granted, this Committee could have 
immunized him and brought him here. Because of the commutation, 
because that means an appeal is still lingering, that created a 
very different scenario.
    Mr. Wilson, final question to you, let me give you this 
hypothetical for a moment. Let's say that William Jefferson 
Clinton had been President of the United States and an 
allegation had been made that his Administration had leaked the 
identity of a covert CIA informant and that the Clinton 
administration had done it for the purpose of punishing----
    Mr. Conyers. The gentleman's time has expired.
    Mr. Davis. Mr. Wilson, can you comment?
    Mr. Wilson. Well, let me comment by referring you to what 
the first President Bush said at the dedication of the new CIA 
headquarters when he said that those who would betray the 
identity of their sources, by sources he meant CIA officers, 
are the most heinous of traitors, something to that effect, 
sir.
    Mr. Conyers. The time has expired. As the Members of the 
Committee know, we have got bells on and I have got Mr. Issa 
has just come in, Randy Forbes is here. Let me divide all the 
time we can between the several of you. Randy Forbes, do you 
want to start off or does Mr. Issa?
    Mr. Issa. I will be brief. Ambassador Wilson, today I think 
we are dealing with the question of whether or not we--we 
should be dealing with the question of whether or not there is 
a legitimate right if the President believes that a sentence is 
severe, to commute it. Do you agree with that?
    Mr. Wilson. Actually, Congressman, thank you for the 
question. My understanding was whether or not he had exceeded 
his commutation authority, but more to the point, as I 
testified, whether or not by having taken this action to really 
impede--really remove from Mr. Libby any incentive to cooperate 
with the prosecutor if he has a guarantee that there remains a 
cloud over the head of the Vice President.
    Mr. Issa. I heard you say that but the fact is he granted 
no immunity, he granted no pardon, he simply said you are not 
going to jail, is that correct?
    Mr. Wilson. That is correct. That is my understanding, sir.
    Mr. Issa. This essentially was for failure of candor/lying, 
not under oath, to Federal officials. That is pretty much it. 
That was what it was all about.
    Mr. Wilson. My understanding of the conviction, it was four 
counts of lying to Federal investigators, lying to the grand 
jury, and obstruction of justice.
    Mr. Issa. I am going to ask you, because you are uniquely 
qualified. Your wife, the subject of what started this whole 
thing, came before both the House and the Senate and told us 
that she didn't promote you for the job in Niger, and yet after 
I have been able to read her communications and documents, 
classified documents, I have come to the opinion that she 
perjured herself.
    So now let me ask you, because you are uniquely qualified 
here, do you think that if in fact your wife was less than 
candid, was not completely honest, or in some way shaded the 
truth while under sworn testimony before the House or the 
Senate, that in fact she should not be granted any limitation 
on a sentence or any pardon for what she has done and should be 
prosecuted if appropriate?
    Mr. Wilson. Congressman, the question before this 
Committee----
    Mr. Issa. The question before you, excuse me, Ambassador, 
the question before you is appropriate because in fact this is 
a political environment, your wife has testified before this 
Committee, you have been chosen to be here on this subject 
through no accident. You are here as in fact a tangential part 
of the underlying investigation while issuing an opinion before 
us as to whether this was intellectually honest to commute it.
    So now I am asking you, if your wife, as I believe, has 
perjured herself before the House and the Senate, are you going 
to say here today that in fact there should be no impeding of 
that, she should be granted no clemency or pardon so that we 
can get to the bottom of why she said one thing in classified 
documents and another thing before Congress.
    Mr. Wilson. Congressman, my wife answered honestly and 
truthfully to the best of her ability.
    Mr. Issa. Ambassador, that is not just true.
    Mr. Conyers. The witness and the Member will suspend, 
please. We are going--since there have been so many requests 
for time, I will grant you additional time when we come back. 
But we will stop at this point to answer our responsibilities 
on the floor. The Committee stands in recess.
    [Recess.]
    Mr. Conyers. The Committee will come to order.
    We will come back to the conclusion of the responses from 
the questions of Mr. Issa, but right now the Chair will now 
call upon the gentlelady from California.
    Ms. Lofgren. I just walked in from chairing our delegation. 
If I could defer?
    Mr. Conyers. Absolutely.
    Ms. Lofgren. Thank you.
    Mr. Conyers. The Chair will recognize Congressman Debbie 
Wasserman Schultz of Florida.
    Ms. Wasserman Schultz. Thank you so much. My question is of 
Professor Berman. Professor, forgive me, I wasn't here for your 
testimony, I had an Appropriations Committee meeting at the 
same time. But I have followed this case and certainly spent 
some time reviewing the decision of the President. Doesn't 
reducing a sentence for public service open up a tremendous 
loophole where the wealthy and privileged can have reduced 
sentences because of charitable contributions or whatever 
public service commitments they have made? On the flip side, 
those would be unavailable to the under privileged or working 
poor? And how does that factor in with the guidelines that are 
supposed to address what an appropriate sentence is that would 
be equitable of course if we are treating people equally as the 
Constitution dictates that we do? How does that juxtapose 
against that notion?
    Mr. Berman. Well, I think you have nicely put your finger 
on exactly why the sentencing guidelines have policy statements 
that tell judges that they should not ordinarily consider 
matters such as community service or family ties or 
responsibilities, because my understanding of the background 
there was that the Commission was greatly concerned that if it 
suggested to judges to consider matters like public service, 
damage to reputations, it would cut against Congress' own 
statements as part of the sentencing format that socioeconomic 
class should not be a factor that is relevant to sentencing 
whatsoever.
    And so I certainly agree, and that is itself one of the 
curiosities I take away from the President's statement that 
this seems to be an endorsement of the notion that damaged 
reputation, family harms are not just valid considerations, but 
could justify completely eliminating an entire prison term. So 
I guess I share your concern. I would resist a little bit the 
idea of a loophole. By that, I mean I do think, and I have 
written to this effect, that prior good works and a commitment 
to public service might be indicative of a low likelihood of 
recidivism or might suggest a diminished culpability, what I 
would hope both the President and Sentencing Commission and 
those who work in this field look for ways that those could be 
valid considerations, but don't have the kind of privilege skew 
that I think you are rightly putting your finger on. I think 
that is the broader concern here. If we too readily endorse 
those as considerations, it will only be the privileged with 
well heeled lawyers that are able to convince that they deserve 
a break for these circumstances.
    Ms. Wasserman Schultz. Professor Berman, you wouldn't know 
that I asked a question as an opponent of sentencing guidelines 
so I--the whole decision is baffling to me. Not 2 weeks before 
you had a gentleman named Victor Rita, who was given 33 months 
in jail and whose case was argued all the way up to the Supreme 
Court--I am sure that has been mentioned by my colleagues prior 
to my question--all the way up to the Supreme Court vigorously 
argued in support of by the Department of Justice for an 
obstruction of justice and perjury. Yet just 2 weeks after that 
the President issues a statement saying, my decision to commute 
his prison sentence leaves in place a harsh punishment for Mr. 
Libby. The reputation he gained through his years of public 
service and professional work in the legal community is forever 
damaged. His wife and young children have also suffered 
immensely, he will remain on probation. And then it goes on a 
couple more sentences.
    The President literally leaves the impression to the 
country, to the Nation that if you have a wife and young 
children and you have a reputation that you gained through 
years of public service that somehow there is an asterisk next 
to your name when it comes to having a sentencing guideline 
applied to your case.
    Mr. Berman. I would respond to that that those who work in 
the system know that that is an asterisk that hasn't been 
utilized for virtually any other defendant, and that really is 
where my own surprise and disconcert was that I myself have 
represented clients who have made a mistake and wish to 'fess 
up to it, plead guilty, look to turn their lives around and 
assert their prior good works, assert their history of being 
responsible citizens and they don't get a break. In fact the 
Justice Department regularly----
    Ms. Wasserman Schultz. Before my time expires, let me ask 
you one more question. Do you think that the higher ranking the 
employee the greater latitude the employee should have in 
committing crimes and escaping punishment, so that the Chief of 
Staff to the Vice President doesn't get any jail time at all 
when convicted by a jury of four serious felonies--and not in 
defense of Mr. Rita's action because I don't think obstruction 
of justice and perjury is okay under any circumstances, but is 
there any difference in these two cases where Mr. Rita was a 
public official, a public servant, and does get 33 months 
argued by the Department of Justice in support of that 
sentence, but Mr. Libby gets a commutation of his sentence by 
the President?
    Mr. Berman. I certainly don't think one's higher status in 
government is a justification or an additional mitigating 
factor. If you are a believer in the current impact of the 
criminal law, it strikes me it is especially important in a 
high profile case to make extra sure. I think this ultimately 
was part of what drove Judge Walton's decision, was that this 
was a case that would be closely watched, not just by everyone 
in the Nation but around the world, and that making a statement 
that nobody is above the law and they get subject to the same 
rules--I believe Mr. Fitzgerald emphasized this point as well 
in response to the President's commutation. If you are a 
believer in deterrence, if anything, the higher profile, the 
more prominent the defendant, arguably the more severe the 
sanction should be.
    Mr. Conyers. The gentlelady's time has expired.
    Ms. Wasserman Schultz. Thank you.
    Mr. Conyers. When we went to take our votes, we had the 
gentleman from California, Mr. Issa, who had 1 minute and 42 
seconds remaining and there was a colloquy going on. If you 
would like to finish up now, we will yield to the gentleman 
from California.
    Mr. Issa. Thank you, Mr. Chairman.
    I know that this hearing today is not about clemency, it is 
not about the power of clemency by the President. It is clearly 
quite frankly about whether or not we can get some more mileage 
out of the disclosure of Valerie Plame as a CIA agent. And I am 
sorry to see that, because I think that we have taken what 
should have been serious business and we have reduced it. And I 
apologize, Mr. Chairman, that I feel that this is a very 
hypocritical event, that in fact we are not having the 
discussion that we should be having, because if we were having 
the discussion that we should be having the President's 
determination of whether politics plays a role in sentencing 
and therefore clemency is or isn't appropriate is in fact a 
legitimate subject for debate.
    I happen to believe, and I will say it on the record so 
like your statement from the past it will be on the record, 
that in fact that is the fair use of clemency or pardoning.
    And I will close, Mr. Chairman, by saying that all of us 
together, not too long ago, talked about how when President 
Gerald Ford restored a certain amount of confidence, paying a 
high price for it by the way, by pardoning President Nixon so 
the Nation could get on with its work, pardoning him not for 
his sake, but for the Nation's sake that he used a pardon 
authority, not because it was popular, but because it allowed 
the Office of the President and the rest of government to move 
on.
    I am sorry that this one will not have the same legacy, but 
in fact it should be taken in the same light. We have had a lot 
of politics related to this for a long time. I certainly 
believe Ambassador Wilson at his word, but I hope he believes 
me at my word, which is that in fact having read all the 
information, I believe that his wife will soon be asking for a 
pardon, that in fact she has not been genuine in her testimony 
before Congress and, if pursued, Ambassador Wilson and Valerie 
would be asking for the same sort of treatment, which is that 
in fact we put this behind us.
    So Mr. Chairman, I hope this will be the last time we use 
political theater in this way. I do not believe this was good 
use of the Committee's time, because I believe that in fact 
this should have been and I hope in the future we will have a 
real debate about the proper use of clemency and pardoning so 
that we not have it be for other than healing the Nation.
    I yield back.
    Mr. Conyers. Well, let me just assure the gentleman that 
this is not theater, this is a legitimate part of our oversight 
and had the gentleman heard much of the testimony before he 
arrived, he would find out that this wasn't about one issue or 
one person, it was about the use or misuse of the commutation 
prerogative that is constitutionally----
    Mr. Issa. Mr. Chairman, I have read the written statements, 
I have been going back and forth between Committees, I 
appreciate that there was some genuineness here----
    Mr. Conyers. I don't want to discuss the merits of whether 
we should have held this hearing. I will accept your advice on 
that regard.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Conyers. In all fairness to the Ambassador, I recognize 
him to make a response before we move on.
    Mr. Wilson. Mr. Chairman, I feel my responsibilities to 
speak to my elected representatives very seriously. Before I 
wrote my article, I came and spoke to the House Intelligence 
Committee staff and I spoke to the Senate Intelligence 
Committee staff before I went public, because my objective in 
this was for the Administration to tell the truth.
    My great uncle sat in this body. The statute of Junipero 
Serra in Statuary Hall was put in at the request of my great 
uncle who was Governor, a Republican Governor of the great 
State of California, Sonny Jim'' Rolph. I find it an outrage 
for Members of this Congress to dare to assert that my wife, a 
public servant of 20 years standing, or myself had committed 
perjury either before this Committee or before any Committee.
    What sort of signal does it send to public servants? What 
sort of signal does it send to intelligence assets, that not 
only can they not count on their government to protect them, 
but they cannot count on members of the President's party to do 
anything other than to further defame them? It is an absolute 
outrage----
    Mr. Issa. Point of order.
    Mr. Wilson. It is beneath the dignity----
    Mr. Issa. Point of order.
    Mr. Conyers. Just a moment, you have not been recognized 
and furthermore this witness who has been accused of something 
quite serious to me has an opportunity to respond.
    Mr. Issa. Point of order, Mr. Chairman.
    Mr. Conyers. By the way, we gave Monica Goodling the same 
courtesy.
    Mr. Issa. Point of order, Mr. Chairman.
    Mr. Conyers. The Chair will allow the Ambassador to finish 
his comment.
    Mr. Issa. Mr. Chairman, I respect that and I would like him 
to do so, but I would like to raise a point of order.
    Mr. Conyers. I cannot recognize him for that purpose. 
Continue, please.
    Mr. Wilson. This is yet a further smear of my wife's good 
name and my good name, and it is indeed an attempt to divert 
attention from the facts at hand.
    The facts on my wife's participation or lack thereof are 
well established. One week after Bob Novak's article appeared 
the CIA spokesman told two reporters from Newsday that she had 
nothing to do with sending me.
    The INR memo of June 10 of 2002, which is a memorandum of 
the meeting at which the trip was discussed, a meeting at which 
my wife was not present, made it very clear that it was a 
subject under active discussion at that time, also made it very 
clear that I agreed with the State Department that there was no 
need to make this trip. Furthermore, the Congressman has said 
that he has read all the information.
    Let me quote for you if I may a passage from the SSCI 
number 2 report, the Senate Select Committee second report, 
which refers to testimony which should have been included in 
the first report because it was taken by them during that 
hearing process. This is--the report's officer who my wife 
testified told her after the first report came out that in fact 
he had been the one who recommended.
    I quote, let me speak to what I know of where she is 
substantively involved. She offered up his name as a 
possibility because we were--we didn't have much in the way of 
other resources to try to get at this problem to the best of my 
knowledge. And so whenever she offered his name up it seemed 
like a logical thing to do. I didn't make the decision to send 
him, but I certainly agreed with it. I recommended he should 
go. That is the report's officer.
    I would like to state emphatically, he continued, that from 
what I've seen Valerie Wilson has been the consummate 
professional through all of this from the start. Whenever she 
mentioned to me and some others that her husband had experience 
and was willing to travel, that she would have to step away 
from the operation because she couldn't be involved in the 
decision making to send him, either that or in his debriefing 
and dissemination of the report and these kinds of things, 
because it could appear as a conflict of interest.
    That should have been in the first report, it was not. The 
legitimate question to ask about that is why not? At what level 
of cooperation and collaboration existed between the Vice 
President's staff, President's staff and those preparing the 
report and particularly the additional views?
    Thank you, sir.
    Mr. Conyers. The Chair now will recognize Randy Forbes. Are 
you prepared, sir?
    Mr. Forbes. I am prepared.
    Mr. Conyers. Randy Forbes is the Ranking Member of the 
Crime Committee from Virginia.
    Mr. Forbes. Mr. Chairman, thank you. And let me say at the 
outset you know the enormous personal respect I have for you 
and for the Ranking Member, but I have to say I have to agree 
with the gentleman from California. I am disappointed, one, in 
the tenor of this hearing, the direction it has gone, the 
manner in which it has been conducted.
    I will just say, Mr. Chairman, I have learned some stuff 
today as I have heard about our witnesses that we need to avoid 
even the appearance of impropriety when we have witnesses here. 
I think it is careful that we not have them at Christmas 
parties and invite them there, because it does give the 
illusion that perhaps it is less than what we would like to 
have before this Committee.
    Let me say this, I think the Ranking Member said it as 
clearly and articulately as I can, on a hearing like this the 
howlers will howl. Fortunately, the public is a lot smarter 
than we give them credit for. They realize oftentimes that the 
opinions are based on whether the howlers are the Democrats or 
the Republicans. We hear testimony today, you can't always 
believe what you read in the press, and yet we hear some of our 
witnesses who base their testimony on what they read in the 
press.
    Mr. Wexler got up here a while ago, he was very 
impassioned. He said, it is the duty of Congress to speak up 
when it is a bad clemency decision or a pardon decision that we 
need to speak up about. And yet 1999, when there was a sense of 
Congress on the floor about the Clinton pardon of a terrorist 
organization that had 120 bombings in the United States, killed 
16 people, and Congress put it to the vote, Mr. Wexler didn't 
speak up for or against it, he voted present.
    Mr. Nadler comes up very impassioned today and talks about 
the importance of this hearing, but on February 28, 2001, when 
they were looking at the pardons that Mr. Clinton had done, Mr. 
Nadler says there seems to be little disagreement among 
scholars that Congress has no power whatsoever to put any 
restrictions or conditions or guidelines on the exercise of 
this power other than by starting a constitutional amendment. 
When they talked about the constitutional amendment, he talked 
about the fact that it had already been debated in the 
Constitutional Convention. They are a lot smarter than we were.
    Mr. Chairman, it would be comical, because it is oftentimes 
like a Casablanca movie and we just say let us round up the 
usual suspects and put them on here, if it wasn't so damaging 
to the country because 6 of 11 hearings that this Committee has 
had have been political attacks on George Bush for 
constitutional executive privilege issues.
    Here is what is happening. Right now the United States is 
the number one target of virtually every significant espionage 
service on the face of the Earth. Just over 100 countries have 
been identified as a threat to the United States interest. 
China, Cuba, Russia and Iran are the most aggressive countries 
spying on the United States.
    We asked to look at cyber crime and espionage. Have we had 
the hearing on that? No. The answer is always we will get to 
that later because we need to get to the political stuff first.
    There are 850,000 criminal gang members in the United 
States. People at home are concerned about what is happening on 
the streets. Are we dealing with those issues? No. Answer, we 
will get to that later, let us deal with the political stuff 
first.
    Violent crime, there is an uptake in it. Could we be having 
a hearing by the full Committee on that? Yes. Are we doing it? 
We will get to that later.
    Terrorism, we had news articles, Mr. Chairman, that al-
Qaeda has a cell here in the United States or on the way. Are 
we having a full hearing on that? No, because we have to do the 
howling first and do the political stuff.
    Crime victims issues, emergency and disaster assistance 
fraud, drug trafficking, all issues we put out at the beginning 
of the year and asked let us have hearings on those issues.
    That is what is resonating with people sitting in their 
homes watching this on TV today. They know we are coming in 
here and howling. That is why poll after poll corroborates that 
we know that this Democratic majority is coming in because they 
want to talk and talk and talk, or as the Ranking Member says, 
howl and howl and howl, but not face real problems and deal 
with real solutions.
    Mr. Chairman, with all my respect for you and for the 
Ranking Member, I just hope that we will stop the howling and 
start dealing with the issues that are really impacting the 
American people while we still have an opportunity to do it.
    Mr. Chairman, I yield back.
    Mr. Conyers. Well, I thank the gentleman from Virginia. I 
don't know if he was here when we told the number of bills 
passed in the 110th Congress these first 6 months and those 
passed in the 109th Congress.
    Mr. Forbes. Mr. Chairman----
    Mr. Conyers. Let me just tell you, in the 109th Congress we 
passed 15 measures out of the Judiciary Committee. In the 110th 
Congress we passed 37.
    And I would yield to the gentleman. I don't know if he was 
aware of that.
    Mr. Forbes. I would like it if you don't mind, Mr. 
Chairman. Mr. Chairman, the American people don't care how many 
bills we pass, they care about whether or not we are dealing 
with the issues impacting them and the solutions. That is why 
you heard earlier today from the former Chairman that we named 
a number of post offices. We have----
    Mr. Conyers. The gentleman's time has expired.
    Mr. Forbes. When you raise those issues, you allowed the 
Ambassador to do additional time. I am trying to take 
additional time on what you raised.
    Mr. Conyers. Just a moment, sir. This is not an informal 
conversation, and I didn't mean to provoke the gentleman. I 
just didn't know if he was aware of this.
    Mr. Forbes. I was just trying to answer your question.
    Mr. Conyers. Thank you.
    The Chair now recognizes the distinguished gentlewoman from 
California, Zoe Lofgren, who Chairs the Immigration Committee 
in the Judiciary Committee.
    Ms. Lofgren. Thank you, Mr. Chairman. I want to before 
asking my question, apparently with my other obligations today 
I missed some animated discussions here. I want to say how 
unfortunate I think my colleague from California's comments 
were, especially in light of what we have seen, what appears to 
be the prosecution by the Justice Department of individuals 
based on political considerations and to even hint that an 
innocent person would somehow be in need of a pardon, 
especially given the service. With that background of 
politicized prosecution, I think it is very unfortunate.
    I would like to ask a question of Mr. Cochran. One of the 
suggestions that has been made to me is that while we know that 
Congress and I believe the courts have no power to review the 
pardon power of the executive, I believe it to be true that the 
rationale advanced by the President in this case is going to be 
used by defense counsel prospectively and to good effect to 
lessen sentences of defendants in Federal proceedings.
    Do you believe that is true? Can you advise me on that 
point?
    Mr. Cochran. I think that is true and I have to disagree 
with Mr. Rivkin, I believe that is a legitimate basis. In the 
President's signing statement he listed very clearly the bases 
for the commutation in Mr. Libby's sentence. Many of those were 
in fact reasons Mr. Rita asked the judiciary to vacate his 
sentence and return it for resentencing.
    Ms. Lofgren. That is a different question. That is 
something that is happening. I am looking 5 years from now, 6 
months from now. Will this be used effectively in your 
judgment? You are an experienced----
    Mr. Cochran. I don't know in terms of effectively. I do 
believe genuinely it will be used and probably will be used a 
great deal. I think we have yet to see and will only see by 
appellate decisions how effective it becomes, but it does open 
up an entire area for seeking reduced sentences in Federal 
court. And because of the President's listing of those factors 
that he considered in commuting Mr. Libby's sentence were 
fairly specific, I think there will be many defense attorneys 
that will use that as the basis for seeking reduced time.
    Ms. Lofgren. Now, I have a question for Professor Berman 
relative to the impact of--the legal impact of a pardon. I 
believe it is clear that the Congress and the courts have no 
power to review the commutation or pardoning by the executive. 
I don't think--I think that is well settled.
    Mr. Berman. I think that is right.
    Ms. Lofgren. The question is this, if the President can, 
any President, I don't want to talk necessarily about this 
case, if any President can pardon for any reason, would that 
include a reason that was to advance a criminal conspiracy, for 
example, or for some other reason that was violative of the 
law? Would that----
    Mr. Berman. The Supreme Court has said that the 
Constitution itself provides the only real limit on the 
constitutional power of----
    Ms. Lofgren. It would just be an impeachment?
    Mr. Berman. I think so. What is often true is there really 
isn't sort of elaborate legal development of some of these 
parameters. Ultimately at the end of day Presidents 
historically have used their power with sufficient 
circumspection.
    Ms. Lofgren. Here is one of the reasons why I am 
interested. I think it was during the Clinton years and there 
was a court said well, it is no problem to proceed with the 
civil litigation because it wouldn't take any time whatsoever. 
I think at some point subsequent to that there were statutes at 
least discussed, I don't know if they were implemented, to toll 
the statute of limitation for civil matters for the President 
and Vice President during their terms of office, so that civil 
matters wouldn't disappear, they would just be deferred to the 
end of the term.
    I thought and I don't think there is a similar provision 
for criminal matters. And so here is the question. Just as if 
you can fire somebody for whatever reason you want except you 
can't fire them on the basis of race, you can use a pardon for 
whatever reason you want, but could you use that pardon in 
furtherance of a criminal conspiracy and if we were to toll the 
statute of limitation, would that be considered, do you think, 
or could that be constitutionally considered by a court after a 
term of either the executive or the Vice President was ended?
    Mr. Berman. What is interesting is we haven't really had 
much effort by Congress to sort of test what you might say is 
procedural regulation on the operation of the clemency and 
pardon power. I think your question leads to what sorts of ways 
could Congress seek to push back or, put differently----
    Ms. Lofgren. Not put back, but for example, if there was a 
pardon intended by someone's silence or to further some other 
wrongdoing, the political remedy of impeachment has never been 
achieved in the history of the United States. There has never 
been a conviction on impeachment in the Senate, and yet we all 
agree criminality would be wrong. And so the question is, is 
there some remedy for no man is above the law, is what was said 
during the Clinton impeachment, but there was really no remedy.
    Mr. Conyers. The gentlelady's time has expired.
    Ms. Lofgren. Thank you, Mr. Chairman.
    Mr. Conyers. I thank you very much.
    The Chair recognizes Steve King, the Ranking Member of the 
Immigration Committee on the Judiciary Committee, from Iowa.
    Mr. King. Thank you, Mr. Chairman. I would first like to 
start out with an inquiry of Ambassador Wilson. I am interested 
in a trip you took to Niger and I understand some of the work 
that you did there. Was that overt or covert on that mission?
    Mr. Wilson. I have said repeatedly that my trip was made at 
the request of my government. I made it very clear at the 
request of the CIA, and this is in the June 10, 2002 memo that 
was entered into evidence in the U.S. v. Libby case.
    Mr. King. My clock is ticking, Ambassador. Could you just 
help me----
    Mr. Wilson. I would have to go--I would have to have 
approval of the State Department and indeed of the Ambassador 
there.
    Mr. King. That is a question of classified, you can't 
answer that?
    Mr. Wilson. I also made it clear to my interlocutors that I 
had questions that I had been asked to do, so it was not 
covert.
    Mr. King. It was not covert.
    And when you came back from there, did you deliver a report 
to the CIA?
    Mr. Wilson. I did indeed. There were two CIA officers who 
came to my house within an hour of my having returned from 
Niger.
    Mr. King. Was it written report?
    Mr. Wilson. It was oral report, I also provided an oral 
briefing to another State Department employee in Niamey.
    Mr. King. And was that report then classified, did it 
become a classified report?
    Mr. Wilson. The report was classified by the CIA, my 
understanding is. I never saw the written report until parts 
were declassified and published.
    Mr. King. And parts of it were declassified but not all of 
it. Some of it remains classified?
    Mr. Wilson. I don't know, because I have only seen what is 
declassified, sir.
    Mr. King. That is curious, because you are the individual 
who delivered it all. The parts you have seen that were 
declassified wouldn't be the entirety of the report so one 
could conclude that parts you have not seen would be classified 
to this day?
    Mr. Wilson. The role of the reports officer is to take the 
raw data and turn it into a report, it is then distributed 
throughout the intelligence community using appropriate 
intelligence.
    Mr. King. I understand.
    Did you view your report that you had delivered to the CIA 
as classified in its entirety at the time? And were you bound 
by that confidentiality of classified information?
    Mr. Wilson. I did not classify it and I did not view it as 
classified information. It was a report that I gave to the CIA 
at their request. The mission was undertaken as a discreet 
mission but it was not a classified mission.
    Mr. King. Let me get this right. After the CIA left your 
home and you had delivered mostly an oral report to them, did 
you believe that you were free to disseminate the knowledge 
that you accumulated on the government's dime anywhere you 
chose?
    Mr. Wilson. The government's dime, define that. As I made 
no wages for this 8 days in Niamey, Niger.
    Mr. King. Let's not get bogged down in that.
    Did you believe that you could disseminate that information 
to the public at will or did you believe that you were bound by 
some confidentiality at least to the level of integrity of the 
intel that you were bringing in for the government?
    Mr. Wilson. I did not. It was a discreet mission. It was 
undertaken at the request of my government and it was handled 
on a need-to-know basis, that is correct.
    Mr. King. So it is classified.
    Have you then leaked any of that to the press prior to the 
time----
    Mr. Wilson. ``classified'' is perhaps the wrong word. I 
would not describe it as classified, I would describe it as 
discreet.
    Mr. King. Fine.
    Did you then leak any of that information to the press 
prior to your July 6 Op-Ed that you wrote?
    Mr. Wilson. First of all, I shared it with Democratic 
Senators at that trip after the President's State of the Union 
Address and after Dr. ElBaradei testified before the U.N. 
Security Council that the documents that he had received at the 
Department--that was March 17----
    Mr. King. But none of those people are classified.
    And so did you leak any of that to the press?
    Mr. Wilson. After I spoke to the Democratic Senators a New 
York Times reporter asked me if I would share some of the 
details of the story with him.
    Mr. King. And so was that the reporter Walter Pincus.
    Mr. Wilson. No, Nick Kristof.
    Mr. King. I see here an article by Walter Pincus revealed 
June 12th, which should be prior to your July article, that he 
had an unnamed retired diplomat that had given the CIA a 
negative report. Would that be you?
    Mr. Wilson. Mr. Pincus learned of my name and he did call 
me.
    Mr. King. So you did talk with him?
    Mr. Wilson. I did talk to him, yes.
    Mr. King. You have referenced the 16 words that you allege 
to be--I don't want to put words in your mouth, but I picked 
things out that said today, fundamental misstatements of facts 
in the President's State of the Union Address. I take that to 
mean that you disagree with the facts.
    Do you believe that the President intended to misinform the 
American people?
    Mr. Wilson. My view on that is that somebody put a 
statement in the President's mouth that was not sustained by 
the evidence, and that became apparent the day after my article 
appeared when the President's spokesman said to the press that 
the 16 words do not rise to the level of inclusion in the State 
of the Union Address.
    Mr. Conyers.
    Mr. King. I am reading from the 16 words and they seem to 
be honest and true to this day, that the British government has 
learned that Saddam Hussein recently sought significant 
quantities of uranium from Africa, and yet your written 
testimony references sales not seeking those quantities, but 
actually the sales of those quantities. Isn't that a bit 
deceptive as a part of your testimony here at the beginning of 
this hearing?
    Mr. Wilson. In March the Director General of the IAEA 
testified the U.N. Security council that the information was 
provided him by the Department of State to undergird the 
assertion in the President's statement----
    Mr. King. The President's reference is sought uranium. 
There is a distinction, wouldn't you agree?
    Mr. Wilson. Congressman, everything the White House and the 
Administration has said since Dr. ElBaradei's statement 
indicates that----
    Mr. King. That is not the answer to my question. Do you 
recognize a distinction between the two?
    Mr. Wilson. Congressman----
    Mr. Conyers. The gentleman's time has expired.
    Mr. King. I would yield back if the honorable Ambassador 
would yield back as well, Mr. Chairman.
    Mr. Conyers. Well, if your time is expired then we will 
move on to the next witness, and I thank you very much, Mr. 
King.
    The Chair is now pleased to recognize the gentleman from 
New York, Mr. Anthony Weiner, who serves with great distinction 
on the Judiciary Committee.
    Mr. Weiner. Thank you, Mr. Chairman.
    This hearing has had its sublime moments, perhaps none so 
sublime as the last one that apparently we have found the last 
remaining person that believes the 16 words were correct. There 
have been some, I think, regrettable----
    Mr. King. Would the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. King. Yes. I do believe they are correct and I think 
they are defensible and if you would like to point out where I 
am incorrect, I would be happy to hear it.
    Mr. Weiner. I reclaim my time. That debate has happened and 
your side has prevailed by a margin of everyone against you 
apparently.
    Mr. King. That is an easy statement to make. You are not 
prepared to defend your statement I can see, so I would yield 
back.
    Mr. Weiner. You don't control the time. We have also had 
moments in this hearing, one recently, that I think are truly 
regrettable, when the gentleman from California sought in a way 
to misdirect this hearing and implied in a shameful way that 
the wife of a witness was guilty of a criminal act and not only 
a criminal act but one that required pardon. And I think 
knowing the gentleman from California, given a moment or two to 
reflect, perhaps would consider returning to this chamber and 
expressing some regret for those words.
    I don't have nearly the strident view on that that some in 
this chamber do. I think it is the President's right. There is 
at least one person in particular that I think should get a 
presidential pardon. People who get presidential pardons are 
criminals. They are all bad guys and women, they do bad things. 
But when President Clinton had a large number of controversial 
pardons and commutations, he brought upon himself hearings by a 
Committee of this body. Government Reform and Oversight 
Committee had rather extensive hearings into those things.
    When President Bush put the 16 words in, said he was going 
to do everything possible to get to the bottom of the leak of 
Ms. Plame's name, said he believes very seriously in mandatory 
minimum sentences, believes it was a law and order matter and 
would make sure he got to the bottom of who did the leak and 
crimes would be prosecuted around. If he found out someone in 
his Administration had done something wrong they would be dealt 
with.
    The President provoked this hearing. Commutations and 
pardons, I think we have a greater obligation to review them 
than other elements of the legislative process and judicial 
process because there is very little, if any, transparency to 
them.
    Mr. Issa. Would the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. Issa. I guess you asked that I come back to enter a 
colloquy earlier. I apologize, I was on the other side in 
government reform. But I am happy to not only defend----
    Mr. Weiner. If I could reclaim my time, just let me finish 
my point. I had a couple of rhetorical flourishes I wanted to 
get to.
    Mr. Issa. I don't want to miss them.
    Mr. Weiner. When the President made those proclamations 
that he would get to the bottom of this by commuting the 
sentence of someone who is involved in the investigation to 
find out where it went, he in a sense was covering up 
activities in his own Administration.
    I think it is reasonable for the House Judiciary Committee 
to ask questions about the contradictions between what the 
President said about mandatory minimums and what he did about 
mandatory minimums, about the contradiction between what he 
said about getting to the bottom of this case and what he is 
doing by not getting to the bottom of this case. And at the end 
of the day, there is a very important distinction and I think, 
and I have listened to this here or on television, is a very 
important distinction that I don't think one has said is not 
precedent setting, and that is this was the case of someone 
being pardoned or having their sentence commuted. That was as 
part of an investigation that was a hair's breath away from the 
President of the United States. This was the Chief of Staff to 
the President's singularly top adviser in all of government. 
And when you say well, it is just a little perjury thing, well, 
let's remember how investigations happen. They happen because 
people ask questions, they tell the truth, it leads 
investigators to go someplace.
    This could well be an act of covering up for crimes made by 
the President of the United States. If that doesn't rise to an 
important enough thing for us to have hearings on, then I don't 
know what does.
    I would be glad to yield to the gentleman from California.
    Mr. Issa. Thank you, I hope you understand that my 
assertions against Valerie Plame have everything to do with 
reviewing her testimony before the House and the Senate and----
    Mr. Weiner. If I could reclaim my time.
    Mr. Issa. The----
    Mr. Weiner. So your review and the conclusion you reach 
thereto does not require a pardon. A pardon is a distinct 
thing, as we have learned, that is granted only to people found 
guilty of crimes before a judge or before a jury.
    By implying that someone from this important chair that you 
sit in, someone needs a pardon or may need a pardon does not 
mean you have come to a different conclusion, it means that you 
have drawn the conclusion as a Member of Congress that they are 
a criminal. That is not your place, sir, and it is 
irresponsible for you to try to make it your place simply 
because you disagree with that person.
    Mr. Issa. Of course it is my place to draw from the 
information, both classified and unclassified----
    Mr. Weiner. Reclaiming my time, reclaiming my time.
    Let me just say this, because it has now become apparent 
that my good friend does not understand that pardon is a legal 
term. It is not something--you were not saying, well, pardon 
me, as you brush by someone in the hallway, you were implying 
that they would soon need a pardon.
    Mr. Conyers. The gentleman's time has expired.
    Mr. Weiner. I thank you, Mr. Chairman.
    Mr. Conyers. And the Chair now recognizes Tom Feeney, the 
distinguished gentleman from Florida.
    Mr. Feeney. Thank you, Mr. Chairman. I think I want to join 
the course on this side in the great debate as to whether or 
not this hearing has been fruitful or not. I think the majority 
has pointed out repeatedly it thinks it is an important 
oversight hearing, is what I continue to hear, we have alleged 
it appears to be almost exclusively for partisan reasons.
    It is hard to imagine we are having an oversight hearing 
knowing the power of the presidential clemency under Article 
II, clause 2, section 1, but over whether or not that power was 
abused or used rightly in the Libby case. That is all we are 
talking about here today. Given the fact that everybody that I 
have heard has acknowledged that the power with the President 
is plenary, it cannot be a bridge modified or undermined by the 
Congress.
    It is sort of bemusing to wonder why we are here conducting 
an oversight function on a part of government that we have no 
oversight responsibility to conduct. And I would suggest that 
it is well established that Congress has no oversight authority 
because we can't change it other than through constitutional 
amendment, in which case we ought to be talking about the power 
itself.
    One suggestion is that the pardon should not be used for 
political purposes, but one of the first major uses of the 
pardon power under Article II is when President Jefferson 
utilized the clemency power to pardon all of those convicted 
and sentenced under the Alien Sedition Act, which the 
federalists had used against the Jeffersonian Republicans. So 
he granted clemency to a whole category of people that I think 
most persons upon reflection would think that is correct.
    Mr. Wilson, you said in paragraph 1 of your statement that 
you believe fundamentally this case involves, and I quote you, 
the betrayal of all of our national security, specifically the 
leaking of the identity of a covert officer of the Central 
Intelligence Agency, my wife, Valerie Wilson, as a vicious 
means of political retribution.
    Do you believe that a Federal crime was committed when your 
wife's name was leaked?
    Mr. Wilson. Congressman, thank you for the question. Indeed 
it was the CIA itself that referred the matter to the Justice 
Department.
    Mr. Feeney. Do you believe that a crime occurred?
    Mr. Wilson. Congressman, I would just refer you to what the 
CIA itself did.
    Mr. Feeney. You don't have an opinion on that matter?
    Mr. Wilson. I may, but I will keep that to myself.
    Mr. Feeney. Well, I am asking you your opinion. The only 
reason you are here is to give facts and opinions, I presume. 
If you don't have an opinion, you don't have an opinion.
    Mr. Wilson. Legitimate institutions of my government 
referred this matter to the Department of Justice for an 
investigation. They investigated it, the Department of Justice 
in the name of the Special Prosecutor indicted and convicted 
Mr. Libby on four counts of perjury and obstruction of justice.
    Mr. Feeney. Well, now, you have really put the bunny in the 
hat now. This is the sort of gamesmanship you have been 
playing.
    I asked you whether a crime was committed when your wife 
was outed and you refused to answer that and instead said, yes, 
because Libby was indicted. But he wasn't indicted for outing 
your wife, he was indicted for other reasons. Richard Armitage 
wasn't indicted. As a matter of fact, the Special Prosecutor 
found that there was no violation of law here despite your 
position.
    Mr. Wilson. On the contrary, Congressman, the Special 
Prosecutor found because of Mr. Libby's blatant lying and 
obstruction of justice he could not determine----
    Mr. Feeney. We are not talking about his testimony, but 
whether or not a crime was committed. You don't have an opinion 
that you are willing to share with the Committee. You do have 
an opinion that the whole purpose of this talking about your 
wife's role was a vicious means of political retribution. That 
is your testimony. And yet the Special Prosecutor which you 
just cited for defense of your proposition, which in fact he 
didn't find any underlying crime in this case, the Special 
Prosecutor concluded in fact neither Armitage nor Libby 
disclosed your wife's name for the purpose of compromising 
either your or her identity. Isn't that what the Special 
Prosecutor concluded?
    Mr. Wilson. The Special Prosecutor found that as a 
consequence of Mr. Libby's blatant lying and obstruction of 
justice----
    Mr. Feeney. You don't want to answer the question. We are 
talking about the outing of your wife.
    Mr. Wilson. The underlying crime had been committed. He 
also said that in fact it was hard to see that a conspiracy had 
not been in existence----
    Mr. Feeney. It is pretty clear the Special Prosecutor has 
come to different conclusions.
    Mr. Rivkin, I would like you to elaborate on why you think 
it is that fundamentally in this case when a Special Prosecutor 
was appointed nothing good was going to happen to promote 
justice, nothing but mischief could occur. I think you are 
right in concluding that that is the only thing that has 
occurred is mischief. Why is it that you think that that was 
inevitable?
    Mr. Rivkin. The only reason it is inevitable experience 
shows that no matter the individual probity of the people 
involved if you appoint an independent, a special counsel, if 
you free that person from any supervisory responsibility to 
justify his decisions, if you free him or her from any resource 
constraint, if you focus all of that person's attention----
    Mr. Conyers. The gentleman's time has expired. You may 
finish your answer.
    Mr. Rivkin. Thank you, Mr. Chairman.
    You are going to produce the decisions that do not comport 
with the decision of a normal justice system. Again most things 
happened before. It is extremely unfortunate, somebody said 
earlier, that officials receive the more favorable treatment in 
our justice system because of the possibility of pardons. I 
would respectfully submit that the reverse is true, that 
individuals not in Mr. Libby's position would not have been 
subject to appointment of special counsel, things would not 
have gotten anywhere. I would much prefer the regular treatment 
at the front end to any favoritism to the extent there was one 
at the back end.
    Thank you.
    Mr. Conyers. Thank you. The gentleman from Minnesota, Keith 
Ellison.
    Mr. Ellison. Thank you, Mr. Chair.
    Let's just say Mr. Libby cooperated fully and had not lied 
to the grant jury or the FBI, is it at least possible we would 
really know who leaked what and who disclosed your wife's name?
    Mr. Wilson. Congressman, I was not party to the 
investigation, not party to the testimony, so I really don't 
know. All I can tell you is what Mr. Fitzgerald has said 
repeatedly, which is that Mr. Libby lied blatantly and 
repeatedly and obstructed justice, therefore throwing sand in 
the empire's eyes and guaranteeing there would remain a cloud 
over the President's head. That cloud remains as a consequence 
of the President's commuting the sentence of Mr. Libby, thereby 
no longer providing any incentive for Mr. Libby to finally come 
forward and tell the prosecutor the truth and the whole truth.
    Mr. Ellison. Mr. Wilson, people lie for a reason; isn't 
that right? If you are going to lie to a grand jury and FBI 
agent, you are going to lie in order to achieve some goal. If 
that had not happened, isn't it possible that we would know 
much more about what really happened than we know now?
    Mr. Wilson. I would certainly hope so. I would think one of 
the principal objectives of our civil suit is to ensure that in 
fact the truth on this matter gets out.
    Mr. Ellison. Do we have the truth about who leaked your 
wife's name specifically now? I am not asking what your views 
are. Is it a matter of record?
    Mr. Wilson. I think, Congressman, it is a matter of record 
who is involved in this. I am not exactly clear that we know 
everybody who was involved in it. In fact the argument that I 
have tried to make is that the commutation makes certain that 
we are not able to lift the cloud over the Vice President.
    Mr. Ellison. Let me direct my next question to--I am sorry, 
sir--the gentleman in the middle.
    Mr. Conyers. Mr. Berman.
    Mr. Ellison. I do apologize, it was on the tip of my 
tongue.
    Mr. Berman, we have now a commutation, not a pardon. What 
does that mean from the standpoint of Mr. Libby's fifth 
amendment rights? Can a congressional hearing or grand jury or 
anybody compel Mr. Libby to now answer questions more fully 
about what he knows about this case given the posture of the 
case?
    Mr. Berman. Well, I think it is very difficult in a lot of 
settings with ongoing criminal proceedings, or not yet started 
or not yet finished criminal proceedings, to be confident how 
the scope of fifth amendment rights play out. Oftentimes it 
will be quite valid disputes.
    What I think is really interesting, and this gets back to 
my sentencing expertise more so than fifth amendment issues, it 
is very common when a person has been sentenced to a term of 
imprisonment for them to then start cooperating at that stage 
with an investigation in a hope of getting a motion from the 
prosecutor.
    Mr. Ellison. Reclaiming my time, but now that is not going 
to happen.
    Mr. Berman. That is one of my concerns.
    Mr. Ellison. Yet if there was a pardon is there at least a 
colorable argument that his testimony could be compelled?
    Mr. Berman. The equation changes. That is the key point, 
and one of the reasons I think I am here is the commutation is 
a uniquely different exercise of the clemency----
    Mr. Ellison. Commutation puts us in limbo, no-mans land, 
where we probably can't compel him to come forward and actually 
come forward and talk about happened to the U.S. CIA agent who 
happens to be Mr. Wilson's wife.
    Mr. Berman. I am inclined to offer a fifth amendment 
opinion on what you can and cannot compel him to do, but it 
certainly keeps the case ongoing in a way that adds 
complications to being able to sensibly ask Mr. Libby for more 
complete disclosure.
    Mr. Ellison. Mr. Rivkin I believe has a point of view on 
this.
    Mr. Rivkin. Thank you very much. Very briefly, I do not 
understand this argument at all. I heard this assertion being 
made a number of times. I wish we could spend more time on it, 
but my opinion, of course I don't represent Mr. Libby, his 
ability to invoke the fifth amendment privilege depends 
entirely on whether or not the questions you are asking him 
would produce information that may incriminate him. It doesn't 
depend upon pendency or lack thereof of his appeal. That is 
number one.
    Number two, for the President to pardon him for the 
specific offenses of which he was charged if there are other 
facts in Mr. Libby's past activities that if disclosed may 
incriminate him, I don't understand----
    Mr. Ellison. Reclaiming my time, Mr. Rivkin.
    If somebody said some court wanted to compel Mr. Libby's 
testimony right now and if he could make a colorable argument 
to a judge that might expose him to some other criminal 
liability, wouldn't the court have to say, well, I guess you 
don't have to testify?
    Mr. Rivkin. No, if he has a valid basis. All I am trying to 
say is if has a valid basis to invoke fifth amendment 
privilege. If he doesn't, it is a very binary proposition. If 
he doesn't have it the existence of commutation versus a pardon 
doesn't hold up in this equation. If he does----
    Mr. Conyers. The gentleman is out of time.
    Mr. Rivkin. It makes no sense as a matter of basic 
constitutional law. There is nothing unique about the 
commutation.
    Mr. Conyers. The Chairis now pleased to recognize the 
Ranking Member of the Constitution Committee of Judiciary, a 
gentleman from Arizona, Trent Franks.
    Mr. Franks. Thank you, Mr. Chairman.
    The Ranking Member of the full Committee made the 
observation that we were given the impression that this hearing 
would be the examination of both the Bush and Clinton 
administration pardons earlier, and which is only appropriate 
since our Democratic colleague noted that we need to put the 
case of Scooter Libby in its proper context.
    To do that, it is true Mr. Bush has pardoned a few people, 
but the Clinton administration gives us a lot to work with when 
it comes to examining the pardoning of criminal activity. We 
need not fear that we don't have enough evidence to compare 
here. Just to cite some sources, the number of folks close to 
Mr. Clinton convicted or pleaded guilty to crimes was about 44. 
The convictions during his Administration were 33. 61 
indictments and misdemeanor charges, 14 imprisonments, 7 
independent counsel investigations, 72 congressional witnesses 
pleading the fifth amendment, 17 witnesses fleeing the country 
to avoid testifying, 19 foreign witnesses who have declined 
witnesses by investigative bodies and of course that one matter 
of one presidential impeachment.
    So Mr. Clinton also holds the record, his Administration, 
for the most number of convictions and guilty pleas, the most 
number of Cabinet members to come under criminal investigation, 
the largest number of witnesses to flee the country or refuse 
to testify, the greatest amount of illegal campaign 
contributions, with illegal contributions from foreign 
countries. That gives us quite a lot to work with for 
comparison.
    The Democrats argue this hearing serves a purpose because 
Mr. Libby's case came down to personal considerations, because 
it was politically motivated because the aim was to protect the 
Administration, although all five of the witnesses agree with 
Mr. Keller that they had no evidence that Mr. Libby was going 
to implicate others in the Administration. So how do these 
Democrat objections hold up if we subject the Clinton pardons 
to the same scrutiny?
    Mr. Keller touched on some of them. Mark Rich, a fugitive 
financier who fled to Switzerland while being prosecuted for 
tax evasion and illegal oil deals made with Iran during the 
hostage crisis.
    Denise Rich, his ex-wife, contributed $450,000 to the 
library and the Democratic Party shortly after Mr. Clinton 
pardoned Rich. The FBI began to investigate whether the 
contributions by Denise Rich influenced that pardon. So I don't 
know, Mr. Chairman.
    Carlos Vignali was pardoned for cocaine trafficking after 
paying 200,000 to Senator Hillary Rodham Clinton's brother, 
Hugh Rodham, to represent Vignali's case for clemency. Roger 
Clinton, the brother of President Clinton, that is pretty 
close, was pardoned by his brother for conviction on drug-
related charges in the eighties, and he also pled guilty later 
in 1985 to conspiring to distribute cocaine.
    Susan McDougal, former real estate business partner of the 
Clintons, was pardoned. She was convicted to four felonies 
related to a fraudulent $300,000 federally backed loan that she 
and her husband James McDougal never repaid. Some of the monies 
were placed in the name of Whitewater Development.
    A former CIA director, John Deutch, a one-time spy chief 
and top Pentagon official, was pardoned although he was facing 
criminal charges in connection with his mishandling of national 
secrets on a home computer.
    Mr. Chairman, aside from Clinton administration officials 
acting in their official capacity, and business partners and 
supporters acting in support of Mr. Clinton, there were 
hundreds of other interesting pardons such as where Mr. Clinton 
commuted the sentences of 16 members of FALN gang, a Puerto 
Rican nationalist group that set off 120 bombs in the United 
States killing six people and injuring numerous others.
    It kind of goes on, and I think it is excellent reading and 
something I recommend for the Department of Justice's Web site 
if they ever get a little down time.
    In light of those questions, Mr. Rivkin, my question is how 
can we distinguish the Scooter Libby case from the above 
instances of pardon that involve public officials acting in 
official capacity? And do any of the distinctions change the 
legality or the propriety of the treatment of Mr. Libby?
    Mr. Rivkin. We do not.
    Mr. Franks. I yield back, Mr. Chairman.
    Mr. Conyers. I thank the gentleman and recognize now Judge 
Louie Gohmert of Texas.
    Mr. Gohmert. Thank you, Mr. Chairman. I can't see any 
warning signs, so we will just go from here.
    I am grateful for Mr. Wilson's wife, for her CIA service. 
The CIA is engaged in very difficult service to this country, 
and they are to be applauded and appreciated.
    I am concerned, as reported in June in sworn testimony 
before the House Committee on Oversight and Government Reform--
in March of this year that Mr. Wilson's wife denied 
categorically that she had suggested her husband, and I quote, 
``I did not recommend him. I did not suggest him.''
    We have the e-mail here that was finally disclosed by the 
Senate Committee, and it says, ``So where do I fit in? As you 
may recall''--and it has been redacted, apparently--``CP office 
2 recently, 2001, approached my husband to possibly use his 
contacts in Niger to investigate a separate Niger matter.'' 
there is a redacted part there. ``after many fits and 
starts''--redacted--``finally advised that the station wished 
to pursue this with the liaison. My husband is willing to help 
if it makes sense but no problem if not, end of story,'' but 
that was not the end of the e-mail.
    Let me ask you: Were you aware that she sent this e-mail, 
Mr. Wilson?
    Mr. Wilson. Congressman, first of all, thank you for 
recognizing that.
    Mr. Gohmert. Okay. I will take that as a non-answer.
    Going back to the e-mail, ``Now with this report, it is 
clear that the I.C. is still wondering what is going on.'' so 
it was not the end of the story, the paragraph. ``my husband 
has good relationships with both the P.M. and the former 
Ministry of Mines, not to mention lots of French contacts, both 
of whom could possibly shed light on this sort of activity. To 
be frank with you, I was somewhat embarrassed by the agency's 
sloppy work last go-around, and I am hesitant to suggest 
anything again,'' but that is not the end. ``however, my 
husband may be in a position to assist.''
    Now, it may be that, under her testimony, the definition of 
``did'' or ``did not'' may come into play as to whether or not 
that was being truthful or not truthful to say she did not 
suggest or recommend you, Mr. Wilson, and reasonable minds may 
disagree, but I have a hard time appreciating that.
    Now, as far as the----
    Mr. Wilson. May I respond, Congressman?
    Mr. Gohmert. Do you have an answer yet on whether you knew 
about that e-mail when you testified before the Senate 
Committee?
    Mr. Wilson. No. In fact, I did not know about that e-mail, 
but my wife----
    Mr. Gohmert. She never told you that----
    Mr. Wilson. I am sorry. Can I conclude? May I finish?
    Mr. Gohmert. Well, it was a yes-or-no answer, so anything 
else would be a non-answer to my question.
    Mr. Wilson. Yes. Well, I want a chance to testify that, in 
fact, the genesis of that e-mail was her supervisor's asking 
her to send----
    Mr. Gohmert. I have read her testimony, but she did send an 
e-mail----
    Mr. Wilson [continuing]. To her supervisor, which was 
preparatory----
    Mr. Gohmert. I am now reclaiming my time because the answer 
is not answering the question.
    You never knew about the e-mail, though--that is what you 
are testifying--before you testified before the Senate 
Committee; is that correct?
    Mr. Wilson. That is correct.
    Mr. Gohmert. Okay. Now, did she tell you? Because in her 
testimony she said she was going to go home and talk to you 
about it. Did she?
    Mr. Wilson. That is correct. She came home and talked to me 
about coming into the agency to attend a meeting that took 
place in February at which the question was raised how do we 
best answer the question posed by the Office of the Vice 
President of the United States relative to these documents on 
which they had been briefed.
    Mr. Gohmert. All right. Apparently, the Vice President was 
concerned about it. Now, again, the e-mail says----
    Mr. Wilson. Pardon me, Congressman. It was the Office of 
the Vice President, which I have said repeatedly, and that has 
been a point of----
    Mr. Gohmert. Let me go to the e-mail.
    She said, ``Not to mention, lots of French contacts,'' and 
it has been documented or at least mentioned in the media in 
many places that you have international clients that you 
assist, and your wife indicates that you have a lot of French 
contacts. In 2002, did you have French clients that included 
either the French Government, French business or French 
individuals who engaged in international trade?
    Mr. Wilson. No, sir.
    Mr. Gohmert. All right. Have you since that time?
    Mr. Wilson. No, sir.
    Mr. Gohmert. Okay. So, of your French contacts, would you 
say that they are friends or would you say they are just people 
you know?
    Mr. Wilson. Congressman, I was a diplomat for 23 years, 
mostly in francophone countries. I have had a lot of dealings 
with the French Government.
    Mr. Gohmert. So is that a yes? They are friends or they are 
contacts?
    Mr. Wilson. They are diplomatic colleagues and contacts. 
Sometimes they are friends, and sometimes they are not friends, 
because we compete with the French in a number of different 
areas.
    Mr. Gohmert. That is true.
    I am also curious. Is there any requirement for CIA agents' 
filing disclosure documents as to relations that a spouse or an 
immediate family member may have with foreign governments?
    Mr. Wilson. You will have to ask the CIA, Congressman.
    Mr. Gohmert. Okay. You are not aware.
    Mr. Conyers. The gentleman's time has expired.
    Mr. Gohmert. Could I just make one statement that I do not 
think you will have a disagreement with?
    The jury found that Scooter Libby had lied. I have a hard 
time ever setting aside a finding of fact by a jury, so I would 
not have supported a pardon based on the jury finding unless an 
appellate court would find otherwise. Based on the statements 
by the judge and the prosecutor, however, I do not think the 
commutation was out of line, and I appreciate the Chairman's 
indulgence.
    Mr. Conyers. I thank the gentleman.
    I apologize to Mike Pence, whom I should have called at an 
earlier time. The gentleman from Indiana, Mr. Pence.
    Mr. Pence. Thank you, Chairman, and there is no apology 
necessary. I appreciate your calling this hearing and your 
characteristic decorum in conducting it.
    You know, I must confess. This has been an interesting 
hearing, and I think the four witnesses on this end of the 
table have contributed mildly to my understanding of this 
issue. Now, I am a bit mystified, I would say respectfully to 
the Committee leadership, to have Ambassador Wilson here, 
although I admire his panache at a certain level.
    I do not often quote The Washington Post, being kind of a 
cheerful, right-wing conservative. Quite frankly, I do not 
often read The Washington Post. But there was an editorial 
entitled ``The Libby Verdict: The Serious Consequences of a 
Pointless Washington Scandal'' that was published in the wake 
of the verdict in the attendant case on 7 March, 2007. I think 
it bears on some of the discussion we have had today.
    Again, this is The Washington Post, not a world view I 
generally endorse, but it referred to this case as one, quote, 
``propelled not by actual wrongdoing but by inflated and 
frequently false claims and by the aggressive and occasionally 
reckless response of senior Bush administration officials.''
    Yes, I must say to you respectfully, Ambassador Wilson, 
that your claims early in your testimony--and I have reviewed 
your written testimony as well--again asserting that your wife 
was covert when, as The Washington Post pointed out in this 
same editorial, that there was no evidence presented at trial 
that your wife was, in fact, a covert operative and the 
assertion that you made again before this Committee that it 
was, essentially, a conspiracy to do violence to your 
reputation and to your wife's reputation.
    Again, I am quoting The Washington Post that said, quote, 
``The trial has provided convincing evidence that there was no 
conspiracy to punish Mr. Wilson by leaking Ms. Plame's identity 
and,'' they added, ``no evidence that she was, in fact, 
covert,'' close quote.
    You know, you have made a number of extraordinary comments. 
They are not new allegations on your part. They have been 
reiterated frequently by you, which is your right as an 
American. You are certainly entitled to your own opinion, but I 
would argue that you are not entitled to your own facts.
    Respectfully, Mr. Ambassador, the findings of this trial 
are supported by the editorial in The Washington Post. The 
trial had provided no convincing evidence that there was a 
conspiracy to punish you and no evidence that your wife was, in 
fact, covert.
    I would also say that I have actually authored a Federal 
media shield statute that I hope this Committee will actually 
consider in markup this week, and it is about some elements of 
the Administration being as annoyed at me as I have been with 
some of the people on this panel, but it derives, 
interestingly, from this case, from my being appalled at the 
image of an American journalist being put behind bars for being 
forced to reveal who her source was in this case. So this has 
had a big impact on my life. You can imagine how more appalled 
I was when I found out that the prosecutor in this case, Mr. 
Fitzgerald, learned early on that Mr. Novak's primary source in 
this case was not Mr. Libby at all.
    Let me quote again from The Washington Post.
    Quote, ``In fact, he learned early on that Mr. Novak's 
primary source was former Deputy Secretary of State Richard L. 
Armitage, an unlikely tool of the White House,'' by his 
reputation and career. That was my addition.
    The Washington Post went on to say, ``It would have been 
sensible for Mr. Fitzgerald to end his investigation after 
learning about Mr. Armitage. Instead, like many special 
prosecutors, he pressed on,'' and, they added, ``the damage 
done to journalists' ability to obtain information from 
confidential government sources has yet to be measured,'' close 
quote.
    Now, I will not reiterate because I do not believe in name-
calling, even if I am just quoting editorials, but I will not 
reiterate the name that they called the distinguished witness 
of this panel. Even as strongly as I feel about this issue, I 
thought it was out of line and uncalled for.
    I thought it was at least worth reflecting, Mr. Chairman, 
that even though The Washington Post has a different version of 
this case than does, I think, perhaps the most celebrated 
witness on this panel that, in fact, his wife was not a covert 
operative and that the court found, in effect, no evidence that 
she was covert, the court provided convincing evidence there 
was no conspiracy to punish Mr. Wilson by leaking Ms. Plame's 
identity. In fact, Scooter Libby was not the primary source in 
this case at all.
    None of which is to say that I excuse Scooter Libby for 
committing felony perjury. I certainly do not excuse President 
Clinton for having committed felony perjury. I just think that 
the contrast between President Clinton, who lost his law 
license for having committed felony perjury, compared to 
Scooter Libby's facing 2\1/2\ years behind bars for having 
committed the same act before a grand jury impaneled by a 
special prosecutor, suggests that, as the President observed, 
the punishment did not entirely fit the crime.
    So, with that, I will yield whatever remains of my time to 
the gentleman from California.
    Mr. Issa. Thank you. I thank the gentleman for yielding.
    I just want to follow up on one thing you said, Mr. 
Ambassador. You said you briefed the HPSCI and the SSCI before 
your Op-Ed, and I wanted to know if you could provide us with 
details since, in calling to the HPSCI--the House Intelligence 
Committee--they can find no record, including the individuals 
who were tasked with looking specifically at the file history, 
of who you met with.
    Who did you meet with in the way of staff on the Republican 
side, which was the majority and the controlling side, prior to 
that Op-Ed?
    Mr. Conyers. The gentleman's time has expired.
    Please respond to the question.
    Mr. Wilson. Certainly.
    I do not recall who I met with, Congressman. I called--the 
Republican party, I believe, was in the majority then--and I 
asked that there be staff members from both sides of the aisle, 
sir.
    Mr. Issa. But you did meet with them in person?
    Mr. Wilson. I did, yes, sir.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Wilson. That, of course, is reflected, albeit 
imperfectly, in the SSCI report. I cannot tell you about the 
HPSCI report, if the HPSCI ever did a report.
    Mr. Conyers. I thank the witnesses. They have been 
exceedingly patient through all of the voting that has caused 
us recesses; and, of course, I commend my colleagues, as usual, 
who have provided such interesting insights.
    Might I just say that Presidents of all parties have used 
pardon powers without subjecting them to the usual or proper 
process. In my judgment, that is sometimes a dangerous 
practice, and it is particularly problematic when the pardon or 
commutation applies to a member of the President's own 
Administration, as has been the case here and which has really 
created the extra interest.
    The record reflects that the prosecution in this case was 
legitimate and in good faith. The investigation was initiated 
by the Central Intelligence Agency and was pursued by the 
Justice Department and, eventually, by a Republican appointee, 
Patrick Fitzgerald, who was named as special counsel and who is 
a widely respected prosecutor.
    There have been a number of questions raised regarding the 
Marc Rich pardon and its appropriateness; and whatever the 
concerns were that were raised about the merits of that pardon, 
President Clinton, in my judgment, did the right thing; and 
hearings were held on that subject in both the Senate and the 
House Government Operations Committees and in the House 
Judiciary Committee, itself.
    So when that happened, the President did not assert 
executive privilege, and he allowed a number of his aides to 
testify, some who came and said that they had recommended 
against the pardon that has been repeatedly brought up here, 
and so we offered the same thing, for President Bush to send 
someone up here to work with us, and he declined to do so.
    I thank the witnesses. I thank the Members of the Committee 
for their attempts at keeping order and decorum to the best of 
their abilities.
    Mr. Issa. Mr. Chairman, could I add that point of order 
now?
    Mr. Conyers. No.
    Mr. Issa. I have been waiting.
    Mr. Conyers. I know, but--yes, yes.
    Mr. Issa. Mr. Chairman.
    Mr. Conyers. Do you know what I am going to do? I am going 
to grant you a point of order now that you are back.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Conyers. You are welcome. What is it?
    Mr. Issa. My point of order was that the rules of the 
Committee, in fact, require unanimous consent or a vote of the 
Committee in order to exceed the 5-minute rule. My point of 
order was, in fact, that rehabilitating a witness who by this 
statement that now has been read in by another member was, in 
fact, misplaced, and incorrectly trying to rehabilitate both 
himself and his wife on nobody's time is, in fact, inconsistent 
with our rules, is it not? Is that point of order not correct, 
that rehabilitation will require----
    Mr. Conyers. The point of order, referring to the rule, is 
correct, but there are times when I have let many of the 
witnesses go over time, and the charge that was raised, 
incidentally, by you was of such magnitude that I felt it very 
inappropriate. I did the same thing for Monica Goodling.
    Mr. Issa. Mr. Chairman, I am not objecting to your decision 
that you may want to rehabilitate, but my point of order, which 
was timely, would have required a unanimous consent in order to 
do that. That is the basis under which, I understand, we exceed 
the 5-minute rule. Is that not correct, Mr. Chairman?
    Mr. Weiner. Mr. Chairman, may I be heard on that point of 
order?
    Mr. Conyers. No. I would like to take this up with our 
staff, which assures me that I am in the totally correct 
position on----
    Mr. Issa. Is the Chairman prepared to rule on my point of 
order?
    Mr. Conyers. Yes. I will rule your point of order not to be 
appropriate.
    Mr. Issa. I appeal the ruling of the Chair.
    Mr. Weiner. Mr. Chairman, I move to table.
    Mr. Issa. Mr. Chairman.
    Mr. Conyers. This is not in particularly good faith, my 
friend. I did this for you, and now you want to have a roll 
call on a point of order.
    Mr. Issa. Mr. Chairman, I believe my point of order was 
good and valid, and I would ask the Chairman to take under 
reconsideration, for the next appropriate meeting, his ruling.
    Mr. Conyers. Well, I will not only do that, but I will 
acquaint you with the details of the point of order.
    Mr. Issa. I will look forward to that, Mr. Chairman, and I 
will withhold my quorum.
    Mr. Conyers. Well, you know, your generosity continues to 
confound me.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Conyers. I thank all of the witnesses, and I declare 
this hearing at an end.
    [Whereupon, at 5:30 p.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

List of Pardons Granted by President George W. Bush and Pardons Granted 
by President William Clinton, submitted by the Honorable Lamar Smith, a 
Representative in Congress from the State of Texas, and Ranking Member, 
                       Committee on the Judiciary




Article from The Washington Post, dated March 7, 2007, submitted by the 
Honorable Chris Cannon, a Representative in Congress from the State of 
              Utah, and Member, Committee on the Judiciary



Excerpts from Minority Views, Report on Prewar Intelligence Assessments 
   About Postwar Iraq, Together With Additional Views, Senate Select 
 Committee On Intelligence, 110th Congress, submitted by the Honorable 
Chris Cannon, a Representative in Congress from the State of Utah, and 
                   Member, Committee on the Judiciary




   Letter from the Honorable John Conyers, Jr., a Representative in 
 Congress, from the State of Michigan, and Chairman, Committee on the 
       Judiciary, to President George W. Bush, dated July 6, 2007



   Letter from the Honorable John Conyers, Jr., a Representative in 
 Congress, from the State of Michigan, and Chairman, Committee on the 
         Judiciary, to President George W. Bush, July 10, 2007



 Letter from Fred Fielding, White House Counsel, to the Honorable John 
Conyers, Jr., a Representative in Congress, from the State of Michigan, 
     and Chairman, Committee on the Judiciary, dated July 11, 2007