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