[House Report 107-454]
[From the U.S. Government Publishing Office]
Union Calendar No. 269
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-454
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JUSTICE UNDONE: CLEMENCY DECISIONS IN THE CLINTON WHITE HOUSE
_______
May 14, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform submitted the
following
SECOND REPORT
On March 14, 2002, the Committee on Government Reform
approved and adopted a report entitled ``Justice Undone:
Clemency Decisions in the Clinton White House.'' The chairman
was directed to transmit a copy to the Speaker of the House.
APPENDICES
Appendix I.--Committee Correspondence
Appendix II.--Committee Subpoenas
Appendix III.--Marc Rich and Pincus Green Pardon Petition
MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR R.
OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. PATSY T.
MINK, HON. BERNARD SANDERS, HON. ELEANOR HOLMES NORTON, HON. ELIJAH E.
CUMMINGS, HON. DENNIS J. KUCINICH, HON. DANNY K. DAVIS, HON. THOMAS H.
ALLEN, HON. JANICE D. SCHAKOWSKY, AND HON. DIANE E. WATSON
On his last day in office, President Clinton issued 140
pardons and 36 commutations. Several were controversial,
particularly the pardon of Marc Rich, and prompted criticism
from across the political spectrum. Some of the most vocal
critics were those who had been strong supporters and often
defenders of President Clinton. For example, Sen. Charles
Schumer said, ``There can be no justification in pardoning a
fugitive from justice. Pardoning a fugitive stands our justice
system on its head and makes a mockery of it.'' \1\ Rep. Barney
Frank likewise said, ``It was a real betrayal by Bill Clinton
of all who had been strongly supportive of him to do something
this unjustified. It was contemptuous.'' \2\
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\1\ U.S. Attorney: Was Clinton Bribed? Feds Hunting for Link
Between Rich Pardon and Campaign Contributions, Chicago Sun-Times (Feb.
15, 2001).
\2\ E.J. Dionne Jr., And the Gifts that Keep on Giving, Washington
Post (Feb. 6, 2001).
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These sentiments were echoed by the Democratic members of
this Committee. Rep. Henry Waxman said, ``The Rich pardon is
bad precedent. It appears to set a double standard for the
wealthy and powerful. And it is an end run around the judicial
process.'' \3\ At a Committee hearing on the Marc Rich pardon,
Rep. Elijah Cummings expressed the view of many members when he
said:
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\3\ House Committee on Government Reform, Hearings on the
Controversial Pardon of International Fugitive Marc Rich, 37, 107th
Cong., 1st Sess. (Feb. 8, and Mar. 1, 2001) (hereinafter ``Pardon
Hearings, Day One or Day Two'').
It's one thing to go to trial. It's one thing to stay
here and face the music. It's one thing to be found not
guilty. It's a whole other thing, in my opinion, when
somebody, because they have the money, can go outside
the country and evade the system. I tell you it really
concerns me because my constituents have a major
problem with that, and I do, too.\4\
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\4\ Id. at 164-65.
Chairman Burton could have chosen to build upon this
consensus. He could have conducted a focused and bipartisan
inquiry, issued a report that set out the facts for the public,
and avoided the partisanship that has hampered this Committee's
work over the past five years.\5\ Unfortunately, he chose to do
the opposite.
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\5\ See Minority Staff Report, House Committee on Government
Reform, Unsubstantiated Allegations of Wrongdoing Involving the Clinton
Administration (March 2001) (Exhibit 1).
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The Committee's investigation continued more than a year
after Republican congressional leaders themselves acknowledged
it should have ended. In an interview broadcast nationally on
March 10, 2001, House Speaker Dennis Hastert said, ``I think,
probably from my point of view, about all that information
[that] is going to come out, has come out'' and ``I think this
is kind of winding down on its own.'' \6\ Senator Trent Lott,
then Majority Leader, expressed similar sentiments, stating:
``I'd be inclined to move on.'' \7\
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\6\ Hastert Backs Off Pardon Probe, Chicago Tribune (Mar. 11,
2001); see Letter from Rep. Henry Waxman to Chairman Dan Burton (Mar.
15, 2001) (Exhibit 2).
\7\ Hastert Backs Off Pardon Probe, Chicago Tribune (Mar. 11,
2001).
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Rather than wind down the investigation, Chairman Burton
chose to expand its scope. What began in January 2001 as an
inquiry into the pardon of Marc Rich rapidly multiplied to
include dozens of other requests for executive clemency. The
majority report states that ``the Committee limited its
investigation to pardons and commutations where there was no
credible explanation for the grant of clemency, and where there
was an appearance of impropriety relating to inappropriate
access or corruption.'' \8\ But as reflected in its voluminous
report, the majority not only investigated requests for
clemency that President Clinton chose to grant, it investigated
requests that President Clinton denied.\9\ The majority also
devoted great attention to requests for clemency that were
pondered but never even submitted to the Justice Department or
the White House for consideration.\10\ It even examined
unsuccessful efforts by Roger Clinton, the President's half-
brother, to assist a federal inmate in his petition for parole;
\11\ Roger Clinton's purported role in unsuccessful efforts by
the head of an association to obtain the Secretary of
Transportation as a speaker for a symposium; \12\ and Roger
Clinton's apparent acceptance of fees to lobby the
Administration to ease Cuban travel restrictions.\13\
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\8\ Majority Report, Introduction, at 3.
\9\ For example, the majority devotes an entire chapter of its
report to efforts by Roger Clinton to obtain clemency for others, even
though none of the people Roger Clinton recommended for clemency ever
received it from President Clinton. See Majority Report, Chapter Two,
at 709-831.
\10\ For example, the majority report devotes great attention to
allegations that Roger Clinton participated in a scheme to sell a
pardon to Garland Lincecum, a petition for whom was apparently never
submitted to the Justice Department or White House. See Majority
Report, Chapter Two, at 777-798. These allegations have been denied by
Roger Clinton. Swindle is Reported to Use the Name of Roger Clinton,
New York Times (June 21, 2001).
\11\ Majority Report, Chapter Two, at 731-776.
\12\ Id. at 725-31.
\13\ Id. at 723-25.
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As part of this far-flung enterprise, Chairman Burton
unilaterally issued 153 subpoenas and requests for documents.
Of these, fewer than one-third included requests for records
relating to the pardon of Marc Rich. The remainder focused on
members of President Clinton's family. Seventy-five related to
Roger Clinton, twenty-three related to Hugh Rodham, and eight
related to Tony Rodham. In response to these requests for
documents, private parties and government agencies produced
nearly 25,000 pages of documents.
In the end, the majority's investigation sheds little new
light. It is primarily a collection of unsupported and
irresponsible statements. The majority report repeatedly
suggests that corruption by President Clinton or his
Administration may explain the Rich pardon. For example, the
majority states that notes of a conversation between President
Clinton and former Israeli Prime Minister Ehud Barak ``raise[]
the possibility that either Barak or Clinton acted on the Rich
matter because of some promise of future financial return.''
\14\ And the majority accuses President Clinton of making
``false and misleading statements.'' \15\
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\14\ Majority Report, Executive Summary, at 6.
\15\ Majority Report, Chapter One, at 258.
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The majority also makes serious allegations of wrongdoing
against other Administration officials. Most notably, the
majority accuses Deputy Attorney General Eric Holder of
deliberately cutting out other Justice Department officials in
an effort to assist with the Rich petition.\16\ It suggests,
moreover, that Mr. Holder did this because he believed Jack
Quinn could help him become Attorney General in a possible Gore
Administration.\17\
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\16\ Id. at 213.
\17\ Id. at 214.
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There is a critical difference, however, between bad
judgment and the corruption the majority hints at--but never
establishes--in its report. The Rich pardon is indisputably a
case of bad judgment. As wealthy fugitives, Marc Rich and his
associate Pincus Green did not deserve the pardons they
received from President Clinton. But it is equally evident that
the sprawling record assembled by the Committee does not
support the allegation that President Clinton or any other
Administration official was bribed or otherwise corrupted.
Early in the investigation, former White House Chief of
Staff John Podesta, former White House Counsel Beth Nolan, and
former Deputy White House Counsel Bruce Lindsey appeared before
the Committee to explain the decision-making behind the Rich
pardon. Each of these eyewitnesses testified that while they
disagreed with the President's decision, they believed that he
made a decision based on his evaluation of the merits and had
no reason to believe that a quid pro quo or any other improper
consideration influenced his exercise of the pardon power.\18\
There is nothing in the record before the Committee that
contradicts this testimony.
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\18\ E.g., Pardon Hearings, Day Two, at 318, 328, 335, 337.
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In reality, what happened was that in the waning hours of
the Administration, the process broke down, and President
Clinton and other officials exercised poor judgment. Beth Nolan
explained that in late 1999 or early 2000, President Clinton
told her that he ``wanted to exercise the pardon power more
than he had in the past, that he felt he hadn't exercised it
fully, and he wanted to be sure that we had a process in place
to be sure that pardons moved quickly through the process.''
\19\ Ms. Nolan communicated the President's instructions to
speed up the review process to the Deputy Attorney General and
the Justice Department's Pardon Attorney in several meetings
beginning in early 2000.
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\19\ Id. at 100.
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As Ms. Nolan testified, however, these efforts produced
``no movement.'' \20\ She testified that by the fall of 2000,
the Pardon Attorney had indicated that he would not process any
more pardon applications.\21\ But despite this development,
President Clinton insisted on exercising his prerogative to
receive and consider requests for clemency, even up until his
last day in office. Under these circumstances, and working
against the clock, the White House and Justice Department
officials responsible for assisting the President could not and
did not conduct a full and appropriate review of every
petition.
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\20\ Id. at 102.
\21\ Id. at 342.
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The Marc Rich pardon was an outgrowth of this flawed
procedure. It was the product of a rushed and one-sided
process, and it reflected deeply flawed judgment by the
President. It was not, however, the criminal conspiracy that
the majority insinuates.
I. UNFOUNDED ALLEGATIONS OF WRONGDOING INVOLVING PRESIDENT CLINTON
Article II, section 2 of the Constitution grants the
President ``Power to grant reprieves and pardons for offences
against the United States, except in cases of impeachment.''
The Framers of the Constitution intentionally vested the pardon
power in one person who would have sole discretion to make
decisions and bear full responsibility for the
consequences.\22\ In 1788, Alexander Hamilton explained why it
should be so:
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\22\ Despite the existence of guidelines on the subject, such as
those set out in Title 28 of the Code of Federal Regulations, the
clemency power is reserved exclusively to the President under the
Constitution. It cannot be constrained by any executive branch
regulations or by the judgments of any of the President's subordinates.
Indeed, even the majority acknowledges this point. Majority Report,
Introduction, at 29. The clemency power also cannot be constrained by
Congress. The Supreme Court has made clear that the power ``flows from
the Constitution alone, not from any legislative enactments, and that
it cannot be modified, abridged, or diminished by the Congress.''
Schick v. Reed, 419 U.S. 256, 268 (1974). For this reason, some
observers have questioned the power of Congress even to investigate the
President's clemency decisions. For example, Stanley Brand, who served
as General Counsel to the House of Representatives from 1976 to 1984,
opined that the pardon controversy was not a subject ``on which
legislation could be had'' and was therefore a matter outside the
bounds of legitimate congressional inquiry. See Stanley M. Brand, A
Pardon Probe: It's None of Congress's Business, Washington Post (Feb.
28, 2001).
Humanity and good policy conspire to dictate that the
benign prerogative of pardoning should be as little as
possible fettered or embarrassed. . . . As the sense of
responsibility is always strongest in proportion as it
undivided, it may be inferred that a single man would
be most ready to attend to the force of those motives,
which might plead for a mitigation of the rigor of the
law, and least apt to yield to considerations, which
were calculated to shelter a fit object of its
vengeance.\23\
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\23\ The Federalist No. 74, at 377 (Alexander Hamilton) (Gary Wills
ed., 1982).
As the person entrusted with the pardon power, President
Clinton should bear the full responsibility and the brunt of
the criticism for disarray in the clemency review process and
for his controversial decisions. This criticism has properly
been widespread and vociferous. As one commentator noted,
President Clinton's ``truly remarkable achievement was in
creating a consensus against himself with his pardon of March
Rich.'' \24\
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\24\ E.J. Dionne Jr., And the Gifts that Keep on Giving, Washington
Post (Feb. 6, 2001).
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Unfortunately, as with the Committee's past investigations
of the Clinton Administration, the majority's report goes too
far. The report does not recite facts and draw reasonable
conclusions. Instead, the report intersperses suppositions with
facts and draws every possible inference against President
Clinton, those who assisted him in making clemency decisions,
and individuals who advocated clemency for others. Moreover,
the report unfairly questions the motives and integrity of
individuals, and makes numerous unsubstantiated allegations of
wrongdoing.
The following discussion summarizes some of the major
allegations involving President Clinton in the majority report
and then compares them to the facts in the record before the
Committee.
Allegation: It is possible that President Clinton
``acted on the Rich matter because of some promise of future
financial return.'' \25\
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\25\ Majority Report, Executive Summary, at 6.
The Facts: The majority, interpreting a gap in notes of a
conversation between President Clinton and former Israeli Prime
Minister Ehud Barak, suggests that President Clinton pardoned
Marc Rich on the promise of future financial return, a federal
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felony. The majority report states:
Barak had met with Rich personally, and told Clinton
that the Rich pardon ``could be important . . . not
just financially, but he helped Mossad on more than one
case.'' Barak's statement raises the possibility that
either Barak or Clinton acted on the Rich matter
because of some promise of future financial return.\26\
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\26\ Id.
As the majority report later acknowledges, these
typewritten notes specify that there is a gap in the note
taking, and the reference may relate to Mr. Rich's past
financial support for the State of Israel.\27\ The majority has
not and cannot cite to any evidence that President Clinton
acted on the Rich matter because he expected a financial
benefit. The majority's innuendo is irresponsible and
contradicted by the overwhelming evidence before the Committee.
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\27\ Majority Report, Chapter One, at 227.
Allegation: President Clinton ``may be attempting to
use former Israeli Prime Minister Ehud Barak's interest in the
Rich matter as a cover for his own motivations for granting the
Rich pardon.'' \28\
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\28\ Id. at 103.
The Facts: President Clinton, in an op-ed published in the
New York Times, explained that one of the reasons he granted
Marc Rich a pardon was because former high-ranking Israeli
officials and Jewish community leaders had urged the
pardon.\29\ The majority disputes this explanation and
concludes that President Clinton was simply using Prime
Minister Barak's interest as pretext. As explanation, the
majority states: ``An examination of the transcripts of the
calls [between President Clinton and Prime Minister Barak]
shows that Barak did not make a particularly impassioned plea
for Rich.'' \30\ The majority offers no other support for its
unsubstantiated conclusion.
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\29\ See William Jefferson Clinton, My Reasons for the Pardons, New
York Times (Feb. 18, 2001).
\30\ Majority Report, Chapter One, at 103.
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Allegation: President Clinton has failed to offer a
full accounting of his decision to issue the Marc Rich and
Pincus Green pardons.\31\
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\31\ Id. at 105.
The Facts: With the possible exception of President Gerald
Ford, who personally testified before the House Judiciary
Committee about his pardon of Richard Nixon, no President has
given a more complete accounting of a clemency decision than
has President Clinton on his decision to pardon Marc Rich and
Pincus Green.
As the majority notes in its report, President Clinton took
the extraordinary step of waiving all executive privilege
claims with respect to the testimony of former White House
officials.\32\ He allowed his most senior advisors and lawyers
to testify before this Committee, not only with respect to the
Rich pardon, but other requests for clemency as well. John
Podesta, President Clinton's former Chief of Staff, Beth Nolan,
the former Counsel to the President, and Bruce Lindsey,
Assistant and Deputy Counsel to the President, all answered
detailed questions for more than six and half hours about their
deliberative process, confidential internal communications, and
personal recommendations to the President.\33\ Moreover,
President Clinton waived executive privilege and allowed
Committee staff to review the raw notes of conversations he had
with another head of state, former Prime Minister Ehud Barak.
The Committee would never have been able to obtain such
detailed information about the clemency decisions without the
willing cooperation of President Clinton.\34\
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\32\ Majority Report, Introduction, at 38.
\33\ Pardon Hearings, Day Two, at 279-437.
\34\ Attempting to contrast the explanation offered by President
Clinton, the majority cites with approval a ``full accounting''
published by President Bush to explain his 1992 pardon of Caspar
Weinberger and others involved in the Iran-Contra matter. See Majority
Report, Introduction, at 25. President Bush's explanation, however,
does little more than identify Mr. Weinberger as ``a true American
patriot,'' note the length of various investigations into the Iran-
Contra Affair, and criticize the ``criminalization of policy
decisions.'' See Proclamation 6518, 57 Fed. Reg. 62145 (Dec. 24, 1992).
Unlike President Clinton's published explanation, see infra note 35 and
accompanying text, President Bush's explanation made no attempt to
address the criminal conduct alleged against Mr. Weinberger and gave no
substantive explanation as to why he believed a pardon was justified.
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In addition to making his former staff available for
interrogation, President Clinton published a written
explanation for his pardons of Marc Rich and Pincus Green.\35\
He laid out several reasons for the pardons that he understood
to be true at the time: (1) He understood that oil companies
that had structured transactions like Mr. Rich and Mr. Green
had been sued civilly rather than prosecuted criminally; (2) he
was told that in 1985, the Energy Department had found in a
related case that the manner in which Mr. Rich's companies had
accounted for the transactions at issue was proper; (3) two
highly regarded tax experts concluded that the companies had
adhered to the tax law; (4) the companies had paid
approximately $200 million in fines, penalties, and taxes to
resolve the case; (5) in 1989, the Justice Department rejected
the use of racketeering statutes in tax cases, such as the case
against Mr. Rich and Mr. Green; (6) he understood that the
Deputy Attorney General was ``neutral, leaning for'' the
pardons; (7) the case was reviewed and advocated by his former
White House Counsel Jack Quinn and three distinguished
Republican lawyers: Leonard Garment, William Bradford Reynolds,
and Lewis Libby; \36\ and (8) most importantly, former high-
ranking Israeli officials and Jewish community leaders had
urged the pardon.\37\
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\35\ William Jefferson Clinton, My Reasons for the Pardons, New
York Times (Feb. 18, 2001).
\36\ As the majority notes in its report, an initial draft of the
statement incorrectly stated that the ``applications were reviewed and
advocated'' by Mr. Garment, Mr. Reynolds, and Mr. Libby. (See Majority
Report, Chapter One, at 261). President Clinton's representatives
notified the New York Times of the mistake, which corrected the piece
in most printed editions and published a correction. (See Editors'
Note, New York Times (Feb. 19, 2001).)
\37\ William Jefferson Clinton, My Reasons for the Pardons, New
York Times (Feb. 18, 2001).
Allegation: President Clinton's written explanation
for the Marc Rich pardon is ``rife with false and misleading
statements.'' \38\
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\38\ Majority Report, Chapter One, at 258.
The Facts: In its report, the majority dismisses President
Clinton's explanation, reaching the inflammatory conclusion
that ``it was rife with false and misleading statements'' and
left the Committee ``wondering what the President's true
motivations were.'' \39\ While the majority may legitimately
question the merit of President Clinton's decision, its report
provides no basis for the claim that his explanation was not
creditable.
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\39\ Id. at 258, 262.
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Lawyers not involved in the pardon effort, such as Harvard
Law School Professor Alan Dershowitz, supported President
Clinton's decision.\40\ In addition, one prominent Bush
Administration official who testified before the Committee--
Lewis ``Scooter'' Libby--agreed with most of the reasons given
by President Clinton for the pardons.\41\ Mr. Libby represented
Marc Rich before his decision to seek a pardon and now serves
as Chief of Staff to Vice President Cheney. Testifying after
two former federal prosecutors laid out the strength of their
case against Mr. Rich, Mr. Libby flatly stated: ``I believe
that the Southern District of New York misconstrued the facts
and the law, and looking at all of the evidence of the defense
he had not violated the tax laws.'' \42\ Mr. Libby testified,
moreover, that if he had been asked to pursue a pardon during
his representation of Mr. Rich, he could have put together a
strong and defensible case for clemency.\43\
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\40\ Letter from Alan M. Dershowitz to Mike Tirone, Producer,
Hardball With Chris Matthews (Jan. 25, 2001) (Exhibit 3).
\41\ Pardon Hearings, Day 2, at 477-78.
\42\ Id. at 485.
\43\ Id. at 522.
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The fact that lawyers like Mr. Libby believe Mr. Rich had a
defensible case for a pardon does not make the President's
decision right. But it does indicate that it was possible for
the President to reach the decision he did without being
corrupt or deceptive.
Allegation: President Clinton ``encouraged Roger
Clinton to capitalize on their relationship.'' \44\
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\44\ Majority Report, Chapter Two, at 709.
The Facts: In its report, the majority states as a
``finding of the Committee'' that ``President Clinton
encouraged Roger Clinton to capitalize on their relationship''
and that he ``instructed Roger Clinton to use his connections
to the Administration to gain financial advantage.'' \45\ The
majority makes similar allegations elsewhere in this chapter.
For example, it states:
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\45\ Id.
Roger Clinton repeatedly treated his relationship to
President Clinton as a commodity to be sold to the
highest bidder. . . . Roger Clinton's behavior was
unseemly at best, but it is even more troubling that
the President himself appears to have instigated and
encouraged his behavior.\46\
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\46\ Id. at 717.
The majority's sole basis for this finding is a statement
made by a lawyer representing former Arkansas State Senator
George Locke. The majority apparently heard this statement from
the lawyer, who had purportedly heard it from Mr. Locke. Mr.
Locke had purportedly heard it from Roger Clinton. Roger
Clinton, in turn, had purportedly heard it from President
Clinton.\47\ Mr. Locke, on whose credibility the majority
primarily relies, had been convicted of cocaine-related charges
and served time in prison with Roger Clinton. The unreliability
of this triple hearsay should be self-evident.
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\47\ Id. at 709, 719.
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The majority devotes 120 pages to Roger Clinton's apparent
efforts to influence various decisions by the President and
other executive branch officials. It is telling that the
evidence before the Committee shows that he failed in each and
every instance to obtain the result that he sought.
II. UNFOUNDED ALLEGATIONS OF WRONGDOING INVOLVING OTHERS
President Clinton is not the only individual who is the
target of unsubstantiated allegations in the majority report.
The following discussion addresses unsubstantiated allegations
involving other individuals.
Allegation: Deputy Attorney General Eric Holder
deliberately assisted Jack Quinn with the Rich petition,\48\
worked with Jack Quinn to cut the Justice Department out of the
process,\49\ and probably did so out of a desire to become
Attorney General in a possible Gore Administration.\50\
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\48\ Majority Report, Chapter One, at 213.
\49\ Majority Report, Executive Summary, at 6.
\50\ Majority Report, Chapter One, at 214.
The Facts: Deputy Attorney General Eric Holder gave
ambiguously worded and ill-considered advice to the White House
on the Rich pardon petition without knowing all of the facts
and without involving others in the Justice Department.
Contrary to the majority's assertions, however, Mr. Holder was
never in league with advocates seeking a pardon for Marc Rich
and never sought to help them ``circumvent'' the Justice
Department. Moreover, the majority's suggestion that Mr. Holder
acted out of a desire to become Attorney General is
implausible.\51\
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\51\ The majority also contends that Jack Quinn ``circumvented''
the Justice Department by limiting his contact on the pardon petition
to Eric Holder. This makes no sense, as Mr. Holder served as Deputy
Attorney General, the Justice Department official second in rank only
to the Attorney General.
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The majority repeatedly exaggerates evidence received by
the Committee in an attempt to show a conspiracy between Mr.
Holder and Mr. Quinn. For example, the majority suggests that
Mr. Holder purposefully steered Marc Rich to Jack Quinn.
According to the majority report:
Quinn was hired after a recommendation from Deputy
Attorney General Eric Holder. Gershon Kekst, who worked
for Marc Rich on the pardon matter, asked Holder for a
recommendation of how to settle a criminal matter with
the Justice Department. Holder recommended that he hire
a Washington lawyer ``who knows the process, he comes
to me, and we work it out.'' Holder then explicitly
recommended the hiring of Jack Quinn.\52\
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\52\ Majority Report, Executive Summary, at 3. In its report, the
majority attributes the following statement to Mr. Holder as though it
was a direct quote: ``Holder told Kekst that such a person should `hire
a lawyer who knows the process, he comes to me, and we work it out.' ''
Majority Report, Chapter One, at 101. The minority staff notes of Mr.
Kekst's interview do not reflect any mention of the words, ``he comes
to me, and we work it out.'' Even if Mr. Kekst did use those or similar
words to describe Mr. Holder's statement, his recollection is more than
two years old, and he certainly did not purport to remember Mr.
Holder's exact words.
To reach the conclusion that Mr. Holder ``recommended'' Mr.
Quinn to Mr. Kekst, the majority ascribes great significance to
a chance social encounter in late 1998 between Mr. Holder and
Mr. Kekst, who had never before met. According to Mr. Kekst, he
found himself seated next to Mr. Holder at a large corporate
event. After Mr. Holder indicated that he ``worked at Main
Justice,'' Mr. Kekst recalled asking him general questions
about the system of accountability at the Department of Justice
and, in particular, to whom U.S. Attorneys were responsible.
Mr. Holder apparently responded that they were accountable to
him; that was his job. He recalls asking Mr. Holder what a
person would do if he believed he was the victim of an
overzealous prosecutor. Mr. Kekst said that Mr. Holder
suggested hiring a lawyer in Washington, D.C., who knows the
process. He recalled that Mr. Holder then spotted Jack Quinn
and said words to the effect of, ``There is Jack Quinn, someone
like that.'' According to Mr. Kekst, Marc Rich's name never
came up in the conversation.\53\
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\53\ Joint Interview of Gershon Kekst (March 15, 2001).
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The majority also exaggerates the significance of Mr.
Holder's attempt to facilitate a meeting between prosecutors in
the Southern District of New York and lawyers representing Mr.
Rich. The majority writes that ``Holder had worked with Quinn
during the previous year to try to force the Southern District
of New York to sit down and meet with Quinn about settling the
charges against Rich.'' \54\ The majority goes on to say that
``Holder had a basically sympathetic view of the Rich case.''
\55\ In his hearing testimony, Mr. Holder acknowledged
receiving the request from Mr. Quinn and asking a career
Justice Department official on his staff to look into the
matter. He explained that the prosecutors in New York declined
the meeting and said that neither he nor anyone on his staff
ever pressed them to have the meeting.\56\ Mr. Holder further
stated:
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\54\ Majority Report, Chapter One, at 208.
\55\ Id.
\56\ Pardon Hearings, Day One, at 193.
We simply deferred to them [the Southern District of
New York prosecutors] because it was their case. In
candor, if I were making the decision as the U.S.
Attorney, I probably would have held a meeting. In my
view, the government--and the cause of justice--often
gains from hearing about the flaws, real or imagined,
cited by defense counsel in a criminal case. But my
only goal was to ensure that the request was fully
considered.\57\
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\57\ Id.
The majority has no evidence to support its assertion that
Mr. Holder ``tried to force'' prosecutors to meet with Mr.
Quinn or was sympathetic to anything other than Mr. Quinn's
effort to set up a meeting with the prosecutors.
The evidence before the Committee also does not prove the
majority's accusation that Mr. Holder worked with Mr. Quinn to
cut other Justice Department officials out of the pardon review
process. In retrospect, it is clear that Mr. Holder should have
done more to include other Justice Department officials in the
review process. Indeed, Mr. Holder conceded as much during his
testimony.\58\ This mistake in judgment is not evidence of
misconduct.
---------------------------------------------------------------------------
\58\ See id. at 192.
---------------------------------------------------------------------------
The majority points to a November 18, 2001, e-mail message
as proof of a conspiracy between Mr. Holder and Mr. Quinn. The
subject line of the message reads, ``eric.'' \59\ The text of
the message reads: ``spoke to him last evening. he says go
straight to wh. also says timing is good. we shd get in soon.
will elab when we speak.'' \60\ Neither Mr. Quinn nor Mr.
Holder testified about this message, however. Indeed, as the
majority itself acknowledges, it is unclear that ``eric'' even
refers to Eric Holder.\61\
---------------------------------------------------------------------------
\59\ Majority Report, Chapter One, at 213; Majority Exhibit 146.
\60\ E-mail from Jack Quinn to Kathleen Behan, Arnold & Porter, et
al. (Nov. 18, 2000) (Majority Exhibit 146).
\61\ See Majority Report, Chapter One, at 213.
---------------------------------------------------------------------------
Assuming the e-mail accurately reflects the words of Mr.
Holder, it shows that he advised Mr. Quinn to submit the pardon
petition directly to the White House. But this is not proof of
wrongdoing. As Beth Nolan testified, the Pardon Attorney in the
Justice Department had indicated by then that he would not
process any more pardon applications,\62\ while the President
was continuing to accept clemency applications at the White
House.\63\ Advising Mr. Quinn of these facts is not criminal
behavior, and it is consistent with Mr. Holder's expectation
that Justice Department officials would be consulted even if
Mr. Quinn submitted the petition directly to the White
House.\64\ It is certainly more plausible than the conspiracy
suggested in the majority's report.
---------------------------------------------------------------------------
\62\ Pardon Hearings, Day Two, at 342.
\63\ See id.
\64\ Mr. Holder testified that he believed the Justice Department
would have an opportunity to review and consider a pardon petition,
even if it was submitted directly to the White House. Pardon Hearings,
Day One, at 193. The White House Counsel's office consulted frequently
with the Justice Department Pardon Attorney, and did so until the end
of the Administration. See, e.g., Pardon Hearings, Day Two, at 355.
Indeed, toward the end of the Clinton Administration, Mr. Holder asked
that the White House Counsel's office keep his office informed whenever
it needed information from the Office of the Pardon Attorney so that
his office could keep track. Joint Interview of Meredith Cabe, former
Associate Counsel to the President (Mar. 16, 2001). This was normal
procedure, as the Deputy Attorney General is the designated Justice
Department liaison to the White House. See U.S. Attorney's Manual
Sec. 1-2.102(D).
---------------------------------------------------------------------------
Finally, the majority suggests that Mr. Holder helped with
the Rich petition out of a desire to be appointed Attorney
General in a Gore Administration. The majority report states:
At the time when Holder made the decision to assist
Quinn, there was still a realistic possibility of Vice
President Gore winning the election. As an influential
friend of Vice President Gore, Jack Quinn would be in a
key position to assist Holder's chances of becoming
Attorney General. While this may not have been Holder's
sole motivation in aiding Quinn, it was likely a
powerful motivation for Holder.\65\
---------------------------------------------------------------------------
\65\ Majority Report, Chapter One, at 214.
This speculation is completely implausible. At the time
when it was still possible for Al Gore to be President, the
most Mr. Holder did was attempt to facilitate a meeting with
prosecutors in New York and talk to Mr. Quinn about submitting
the pardon petition directly to the White House. He did nothing
to support the Rich petition until he gave an opinion to Beth
Nolan on January 19, 2001. This was the last full day of the
Clinton Administration, and his chances of becoming Attorney
General were nil. As the second ranking official in the Justice
Department, Mr. Holder could have given powerful support to the
Rich petition long before January 19, while the Presidential
election was still in doubt. The evidence before the Committee
shows that he did nothing of the sort.
Mr. Holder exercised poor judgment when he told Beth Nolan
on January 19 that he was neutral, leaning toward favorable on
the Rich petition, if there was a foreign policy benefit to be
gained. As he acknowledged, he knew little about the case
against Marc Rich.\66\ He was not in a position to give any
recommendation on the petition, even if there was a foreign
policy benefit. Mr. Holder publicly expressed regret about
this, testifying that he wished he had ensured the Justice
Department was more fully informed and involved in the pardon
process.\67\ He also acknowledged that if he had known
everything about the case that he later came to know, he would
not have given his opinion.\68\
---------------------------------------------------------------------------
\66\ Pardon Hearings, Day One, at 192.
\67\ Id.
\68\ Id. at 194-95, 233.
Allegation: Jack Quinn and other lawyers
representing Marc Rich made arguments that were ``false and
misleading'' \69\ and ``fraudulent.'' \70\
---------------------------------------------------------------------------
\69\ Majority Report, Chapter One, at 133.
\70\ Id. at 212.
The Facts: The majority repeatedly and inappropriately
disparages the lawyers involved in the Rich pardon effort,
accusing them of dishonesty and deception. The majority bases
such remarks solely on its disagreement with the legal
arguments advanced in the Rich pardon petition.
Mr. Quinn and other lawyers representing Mr. Rich were
carrying out their duty of zealous advocacy on behalf of their
client. The bar rules of the District of Columbia, which govern
the professional conduct of lawyers in this jurisdiction,
impose an obligation of diligence and zeal within the bounds of
the law.\71\ This rule provides that ``[a] lawyer shall not
intentionally--[f]ail to seek the lawful objectives of a client
through reasonably available means'' or ``prejudice or damage
the client during the course of the professional
relationship.'' \72\ A lawyer who fails to adhere to this duty
is subject to discipline, including suspension or disbarment
from the practice of law.
---------------------------------------------------------------------------
\71\ District of Columbia Rule of Professional Responsibility 1.3.
\72\ Id.
---------------------------------------------------------------------------
President Clinton and members of his staff were well aware
that Mr. Quinn was acting as an advocate. Bruce Lindsey even
told President Clinton that ``he should consider Mr. Quinn in
this to be an advocate on one side and not his advisor, and
that Jack had a client.'' \73\ In keeping with his professional
responsibilities as a lawyer, Mr. Quinn had an obligation not
only to advocate the pardon, but to do so in a manner that
would not prejudice his client's interests. He had no
obligation to point out the weaknesses in Mr. Rich's case. The
responsibility to marshal the full array of facts and arguments
against the petition belonged to the government officials
involved in the decisional process.
---------------------------------------------------------------------------
\73\ Pardon Hearings, Day Two, at 145.
---------------------------------------------------------------------------
It is revealing to contrast the majority's treatment of Mr.
Quinn, who is a Democratic lawyer, with its treatment of
Scooter Libby, a Republican lawyer who also represented Mr.
Rich. The majority castigates Mr. Quinn for his representation
of Mr. Rich and contends that he made fraudulent arguments.\74\
Mr. Libby is hardly mentioned, and the majority takes great
pains to point out that he didn't work on the pardon
effort.\75\ But in fact, Mr. Libby represented Mr. Rich far
longer than did Mr. Quinn, and he instructed Mr. Quinn on the
facts of the case and on controversial arguments later used in
the Rich pardon petition.\76\ Moreover, Mr. Libby chose to
represent Mr. Rich--and to accept enormous legal fees from
him--despite his personal conviction that he was a traitor to
the United States.\77\
---------------------------------------------------------------------------
\74\ See, e.g., Majority Report, Chapter One, at 212.
\75\ See id. at 132.
\76\ See Pardon Hearings, Day One, at 123.
\77\ Pardon Hearings, Day Two, at 491.
Allegation: When Jack Quinn filed the Marc Rich
petition with the White House and contacted White House staff
regarding the pardon, he violated ethical rules set out in
Executive Order 12834.\78\
---------------------------------------------------------------------------
\78\ Majority Report, Chapter One, at 102.
The Facts: The majority contends that Mr. Quinn violated
Executive Order 12834, which prohibits, for a period of five
years, a former executive branch employee from lobbying his or
her former agency (including the Executive Office of the
President). The majority asserts that because Mr. Quinn left
the White House in February 1997, his contacts with respect to
the Marc Rich pardon were prohibited by the order.
Although the executive order arguably should extend to
contacts related to executive clemency, it is not clear that it
does so. In fact, Chairman Burton indicated that the Committee
was exploring legislation to close the ``loophole'' in the
executive order.\79\
---------------------------------------------------------------------------
\79\ House Committee on Government Reform, Committee Meeting (Mar.
14, 2002).
---------------------------------------------------------------------------
The executive order identifies six exceptions to the
proscribed lobbying activity. The second exception expressly
allows ``communicating or appearing with regard to a judicial
proceeding.'' \80\ The majority contends that because the
clemency power is wielded by the executive, not the legislative
branch, it cannot be a judicial proceeding. The majority's
interpretation, however, is not supported by the language of
the executive order. To fall within the ambit of the exception,
Mr. Quinn's efforts needed to be ``with regard to'' a judicial
proceeding.\81\ The criminal case pending against Mr. Rich in
New York arguably constituted such a judicial proceeding. The
President's decision to grant Mr. Rich a pardon resolved the
criminal indictment and ended that proceeding. Mr. Quinn's
contacts with the White House appear to fall within the
exception and to be permissible.
---------------------------------------------------------------------------
\80\ Exec. Order 12834, 58 Fed. Reg. 5,911 (1993).
\81\ The word ``regard'' is commonly defined as ``to refer or
relate to; concern.'' See Random House Webster's College Dictionary,
1094 (2nd ed. 1997); American Heritage College Dictionary, 1149 (3rd
ed. 1997).
---------------------------------------------------------------------------
The majority also asserts that its conclusion is supported
by the opinion of a U.S. District Court judge, who found that
Mr. Quinn acted as a lobbyist and was not hired because he was
a lawyer.\82\ The court's opinion in that case, however,
related to the attorney-client privilege and work product
doctrine, and it did not address the scope of lobbying as it is
defined in the executive order. It does not support the
majority's contention that Mr. Quinn violated the ethics ban.
---------------------------------------------------------------------------
\82\ Majority Report, Chapter One, at 218 (citing In re Grand Jury
Subpoenas, No. M11-189 DC (S.D.N.Y. 2001).)
---------------------------------------------------------------------------
As the majority notes in its report, White House Counsel
Beth Nolan raised the issue of the executive order with Mr.
Quinn.\83\ Ms. Nolan appropriately asked an associate counsel
on her staff to look independently at the question. The
associate counsel concurred with Mr. Quinn's interpretation of
the rule and concluded that his work was permissible.\84\
---------------------------------------------------------------------------
\83\ Majority Report, Chapter One, at 216.
\84\ Pardon Hearings, Day Two, at 324.
Allegation: It is likely that Jack Quinn attempted
to mislead the public and the Committee when he claimed that he
did not expect to be paid for his work on the Rich pardon.\85\
---------------------------------------------------------------------------
\85\ Majority Report, Chapter One, at 143.
The Facts: The majority mischaracterizes Jack Quinn's
testimony in an effort to show that he lied to the Committee
about his compensation from Marc Rich. For example, the
majority states: ``Quinn has taken the incredible position that
he did not expect to be paid for any of his work on the Rich
case after he left Arnold & Porter'' and ``[i]t is impossible
to believe that Jack Quinn did his work on the Rich pardon out
of the goodness of his heart, on a pro bono basis.'' \86\ Mr.
Quinn never said that he did not expect to be paid for any of
his work on the Rich case after he left Arnold & Porter, or
that he was working on a pro bono basis. Rather, he said that
he discussed the matter with Robert Fink, another lawyer for
Marc Rich, and came to the conclusion that he would not be paid
additional fees for his work to obtain a pardon. As the
majority notes in its own report, Mr. Quinn testified:
---------------------------------------------------------------------------
\86\ Majority Report, Chapter One, at 138.
After leaving Arnold & Porter, I did consider and
discuss with Mr. Fink whether we should have a new
arrangement. I came to the conclusion that,
particularly because of the fact that we were
unsuccessful in achieving a resolution of this at the
Southern District, and because I didn't think, frankly,
there would be that much more additional time in it,
and because I believed that the earlier payments had
been fair and reasonable, that I would see this through
to the end simply on the basis of the fees we had been
paid.\87\
---------------------------------------------------------------------------
\87\ Pardon Hearings, Day One, at 242.
In his testimony, Mr. Quinn further said that he had not
accepted payments after leaving Arnold & Porter for his work to
obtain a pardon, nor would he accept any such payments in the
future.\88\ Mr. Quinn said, however, that he would accept
payment from Mr. Rich to reimburse him for expenses he incurred
in connection with the pardon controversy.\89\ And he said that
he would accept additional fees for services other than for his
efforts to win Marc Rich a pardon. He testified:
---------------------------------------------------------------------------
\88\ Id. at 242, 266.
\89\ Id. at 266.
Well, look, I don't think it would be fair to ask me to
commit never to accept moneys from him. As I've said to
you, if I do work that justifies my billing him for it,
I will do so. I expect to be reimbursed for the
expenses I'm put to in connection this. Those are the
only moneys I anticipate receiving from him.\90\
---------------------------------------------------------------------------
\90\ Id.
The majority claims that the testimony of Mr. Fink
contradicts Mr. Quinn. As the majority notes in its report, Mr.
Fink testified that he believed Mr. Rich and Mr. Quinn would
come to a fair fee arrangement that was consistent with his
normal fee arrangements and communicated that to Mr. Quinn in
November 2000.\91\ It does not appear from any of the evidence
before the Committee, however, that Mr. Quinn ever concluded an
agreement on fees for the pardon effort. Mr. Quinn could have
concluded that he would not receive any additional fees for
that work.
---------------------------------------------------------------------------
\91\ Majority Report, Chapter One, at 142.
---------------------------------------------------------------------------
The Committee has no evidence that Mr. Quinn accepted
additional fees from Mr. Rich for his efforts to obtain a
pardon. Mr. Quinn made no promise that he would not accept fees
for work separate from his efforts to obtain a pardon or to
reimburse him for expenses he incurred in connection with the
pardon scandal. The Committee has no basis upon which to
conclude that Mr. Quinn misled the Committee.
Allegation: Denise Rich's and Beth Dozoretz's
contributions, efforts to help with the Marc Rich pardon, and
their decision to invoke their Fifth Amendment privilege
against self incrimination raise ``the indelible appearance of
impropriety.'' \92\
---------------------------------------------------------------------------
\92\ Id. at 181, 186.
The Facts: In its report, the majority acknowledges that it
was unable to substantiate the allegation that Denise Rich or
Beth Dozoretz improperly or illegally influenced President
Clinton's decision to grant a pardon to Marc Rich. The majority
nevertheless states that their actions create ``the indelible
appearance of impropriety.'' \93\ The majority bases this
conclusion on the political contributions of Ms. Rich and Ms.
Dozoretz, their lawful efforts to assist with the Marc Rich
pardon effort, and their decision to invoke their
constitutional right against self-incrimination before this
Committee.
---------------------------------------------------------------------------
\93\ Id.
---------------------------------------------------------------------------
The testimony of Ms. Rich and Ms. Dozoretz would have
helped the Committee determine the truth, and their decision to
assert their Fifth Amendment rights was a setback to the
Committee's efforts. The majority is wrong, however, to draw
adverse inferences about Ms. Rich and Ms. Dozoretz from their
assertion of their constitutional privilege. The Supreme Court
has repeatedly stated that a witness's assertion of the
privilege against self-incrimination does not give rise to an
inference of guilt. Calling the privilege ``an important
advance in the development of our liberty,'' the Court has
explained that ``[t]oo many, even those who should be better
advised, view this privilege as a shelter for wrongdoers. They
too readily assume that those who invoke it are either guilty
of a crime or commit perjury in claiming the privilege.'' \94\
---------------------------------------------------------------------------
\94\ Ullmann v. United States, 350 U.S. 422, 426 (1956).
---------------------------------------------------------------------------
As the majority acknowledges in its own report, the
Committee could have compelled Ms. Rich's and Ms. Dozoretz's
testimony by conferring a grant of immunity from prosecution.
The majority elected not to pursue that option. The majority
should not seek to establish by innuendo allegations of
wrongdoing that it could not establish by the evidence.
Allegation: Marie Ragghianti, the Chief of Staff of
the U.S. Parole Commission, hindered an FBI investigation into
Roger Clinton's contacts with commissioners and Commission
staff and may have been trying to protect Roger Clinton.\95\
---------------------------------------------------------------------------
\95\ Majority Report, Chapter Two, at 711, 759.
The Facts: The majority report devotes over 40 pages to
Roger Clinton's unsuccessful efforts to assist a federal
inmate, Rosario Gambino, in an application for parole before
the U.S. Parole Commission (USPC).\96\ The majority also
discusses Mr. Gambino's unsuccessful application for executive
clemency.\97\
---------------------------------------------------------------------------
\96\ Id. at 731-776.
\97\ Id. at 773.
---------------------------------------------------------------------------
As is detailed in the majority report, Roger Clinton
contacted commissioners and staff of the USPC numerous times to
discuss Mr. Gambino's request for parole. While Roger Clinton's
repeated contacts proved to be a nuisance to these officials,
the contacts did not violate any law or regulation.\98\
Moreover, U.S. Parole Commission officials were aware of the
appearance of improper political influence in its proceedings.
Out of an abundance of caution, Commission officials attempted
to discontinue further contacts with Roger Clinton.\99\ The
USPC even created a policy ``restrict[ing] the ability of
Commission staff from engaging in any continued series of calls
or discussions on official matters that are not in the context
of an agency proceeding,'' which it communicated in writing to
Roger Clinton.\100\
---------------------------------------------------------------------------
\98\ See Joint Interview of Michael Stover (July, 17, 2001); see
also Letter from Elaine J. Mittleman to Chairman Dan Burton (Apr. 3,
2002) (Exhibit 4).
\99\ Joint Interview of Michael Stover (July 17, 2001); Joint
Interview of Marie Ragghianti (July 27, 2001).
\100\ Letter from Marie Ragghianti (Oct. 26, 1998) (Exhibit 5);
Joint Interview of Michael Stover (July 17, 2001).
---------------------------------------------------------------------------
For reasons that are not entirely clear from the
Committee's evidence, the FBI took steps to investigate Roger
Clinton's contacts with the USPC. As part of this effort, the
FBI proposed a sting operation whereby a Commission employee
would set up a meeting with Roger Clinton at a nearby hotel
restaurant and introduce Roger Clinton to an FBI agent posing
as a USPC official.\101\ The FBI also apparently proposed that
the Commission employee wear a body wire to record the
conversation with Roger Clinton.\102\ Marie Ragghianti, the
Chief of Staff of the USPC at the time, was uncomfortable with
the proposal and rejected it. Ms. Ragghianti explained that the
Commission did not conduct meetings in restaurants, and she
said that she thought the FBI's proposed arrangements would be
unprofessional and would put the commission in bad light. She
explained further that the agency could accommodate the FBI in
ways other than the proposed sting and maintain
professionalism.
---------------------------------------------------------------------------
\101\ Joint Interview of Marie Ragghianti (July 27, 2001).
\102\ Id.
---------------------------------------------------------------------------
After the Commissioners considered the matter, the USPC did
permit the FBI to place a hidden microphone under the desk of a
USPC employee, who agreed to meet with Roger Clinton.\103\
According to this employee, Tom Kowalski, the FBI proposed that
he ask leading questions to draw out Roger Clinton, but Mr.
Kowalski did not feel comfortable with that approach.\104\ Mr.
Kowalski recalls that he had a half-hour meeting with Roger
Clinton, but Mr. Clinton made no incriminating comments.\105\
The FBI's investigation then apparently ended.\106\
---------------------------------------------------------------------------
\103\ Joint Interview of Tom Kowalski (July 27, 2001).
\104\ Id.
\105\ Id.
\106\ See Joint Interview of Michael Stover (July 17, 2001).
---------------------------------------------------------------------------
In its report, the majority alleges that Ms. Ragghianti
hindered the FBI investigation and may have done so to protect
Roger Clinton.\107\ But the evidence before the Committee shows
only that Ms. Ragghianti exercised her judgment on the
appropriateness of a proposed sting operation. Although the
majority may disagree with her judgment, there is no evidence
that her decision was based on factors other than her
evaluation of the interests of the USPC. The majority's
suggestion that she acted to protect Roger Clinton is unfair
speculation.
---------------------------------------------------------------------------
\107\ Majority Report, Chapter Two, at 711, 759.
Allegation: Hugh Rodham told the White House that
First Lady Hillary Rodham Clinton was aware of the clemency
petition of Carlos Vignali and that his commutation was ``very
important to her.'' Either the First Lady was aware of the
petition and approved of Mr. Rodham's lobbying efforts or Hugh
Rodham lied regarding the First Lady's knowledge.\108\
---------------------------------------------------------------------------
\108\ Majority Report, Chapter Three, at 1264-65.
The Facts: The majority alleges that Hugh Rodham told the
White House that First Lady Hillary Rodham Clinton was aware of
his efforts to lobby for clemency for Carlos Vignali and that
his commutation was ``very important to her.'' The majority
then concludes that because both have denied discussing Mr.
Vignali's petition, either one or the other lied.\109\
---------------------------------------------------------------------------
\109\ See id. at 1678-79.
---------------------------------------------------------------------------
The majority bases its contention primarily on one phone
message from a former White House staff member. The phone
message is an undated, handwritten note on White House
stationary that reads:
Hugh says this is very important to him and the First
Lady as well as others.
Sheriff Baca from LA is more than happy to speak with
you about him but is uncomfortable writing a letter
offering his full support.\110\
---------------------------------------------------------------------------
\110\ Handwritten note by Dawn Woolen, Assistant to Deputy Counsel
to the President Bruce Lindey (Majority Exhibit 22).
Committee staff also conducted a joint interview of the
author of the note, Dawn Woolen, who served as an assistant to
Bruce Lindsey in the White House. When asked about this note
and what Mr. Rodham told her on the phone, Ms. Woolen responded
that she had no independent recollection of the conversation
and that she usually paraphrased phone messages.\111\ Asked to
interpret the meaning of the word ``this'' in the phrase ``this
is important,'' Ms. Woolen speculated that it meant the message
concerning the Vignali commutation.\112\
---------------------------------------------------------------------------
\111\ Joint Interview of Dawn Woolen (Sept. 25, 2001).
\112\ Id.
---------------------------------------------------------------------------
The majority sought to interview Mr. Rodham about the
issue. But Mr. Rodham's attorney informed the Committee that
Mr. Rodham would not testify because Mr. Rodham was constrained
from revealing his client's confidences by the bar rules of the
District of Columbia.\113\ The majority did not seek to
interview Senator Clinton.
---------------------------------------------------------------------------
\113\ Letter from Nancy Luque to Chairman Dan Burton (Mar. 14,
2002) (attaching District of Columbia Rule of Professional
Responsibility 1.6) (Exhibit 6).
---------------------------------------------------------------------------
These fragmentary facts do raise questions about what Mr.
Rodham may have said to Ms. Woolen. But they are wholly
insufficient to support the definitive conclusions that the
majority seeks to draw.
III. CONCLUSION
Despite widespread consensus that the Marc Rich pardon and
other last-minute grants of clemency were unjustified, Chairman
Burton conducted a far-flung and partisan investigation. The
majority report reflects this approach. The report does not
recite facts and draw reasonable conclusions. Rather, it mixes
facts with suppositions, unfairly questions the motives and
integrity of the individuals involved, and makes numerous
unsupported allegations of wrongdoing. The Committee's
extensive investigation uncovered a clemency process in
disarray at the end of the Clinton Administration and poor
judgment. The majority's insinuation of corruption and serious
wrongdoing in the pardon process, however, is unsubstantiated
and wrong.\114\
---------------------------------------------------------------------------
\114\ A number of individuals wrote to Chairman Burton to protest
the manner in which the majority conducted its investigation and
aspects of the majority report. Those which were copied to the minority
are attached at Exhibits 4, 6, and 7.
---------------------------------------------------------------------------
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Paul E. Kanjorski.
Hon. Patsy T. Mink.
Hon. Bernard Sanders.
Hon. Eleanor Holmes Norton.
Hon. Elijah E. Cummings.
Hon. Hon. Dennis J. Kucinich.
Hon. Danny K. Davis.
Hon. Thomas H. Allen.
Hon. Janice D. Schakowsky.
Hon. Diane E. Watson.
[Exhibits referred to follow:]
ADDITIONAL VIEWS OF HON. DAN BURTON
INTRODUCTION
A number of important events have transpired since the
Committee approved the report on March 14, 2002. First, former
President Clinton granted an interview to Newsweek magazine in
which he purported to address some of the issues discussed in
the Committee's report. As discussed below, almost every
statement made by former President Clinton is either false or
misleading. It remains deeply troubling that the former
President is relying on deception and half-truths rather than
squarely addressing the numerous questions raised by his
eleventh-hour clemency grants.
Also in the month since the approval of the report, a
number of parties mentioned in the report, or their counsel,
have provided the Committee with letters responding to the
report. The Committee received letters from Peter Kadzik, Hugh
Rodham, Los Angeles County Sheriff Leroy Baca, and Marie
Ragghianti disputing various aspects of the Committee's report
pertaining to them. I found all of these complaints uniformly
without merit and have responded to them directly. Furthermore,
in each case, I have been disturbed by the lengths to which
these individuals have gone to distort the record of their
involvement in these cases.
The Committee also received documents from Jack Quinn in
response to a subpoena issued by the Committee shortly before
the report was issued. These documents relate to Quinn's
efforts to receive payment from Rich even after he pledged that
he would not accept payment for his work on the Rich pardon.
The documents indicate that after the Committee's hearings,
Quinn and Rich entered into a $300,000 retainer agreement to
compensate Quinn for his time and expenses in responding to the
various investigations and inquiries into the Rich pardon.
However, Quinn withheld additional documents related to other
legal work for Rich, asserting attorney-client and work product
privileges and claiming that the work was unrelated to the
pardon.
The Committee also received a number of critically
important documents from Marie Ragghianti, the former Chief of
Staff to the U.S. Parole Commission. Committee staff initially
asked Ragghianti to provide the Committee with any documents
she had about the Clinton-Gambino matter in an interview in
July 2001. Ragghianti indicated that she would search her files
and provide any documents that she located. Ragghianti provided
no records to the Committee for the next eight months. Then,
after having her counsel prepare a letter complaining about the
Committee's report, she attached a number of documents
previously withheld from the Committee. Accordingly, the
Committee issued a subpoena to Ragghianti for all of her
documents about Roger Clinton or Rosario Gambino, and
Ragghianti provided the Committee with relevant documents
retained in her personal possession. The documents contained
important new facts that bolster the report's conclusions and
undermine Ragghianti's criticisms.
I. COMMENTS BY FORMER PRESIDENT CLINTON
After the Committee's report was released, former President
Clinton conducted an interview with Newsweek in which he
purported to respond to the concerns raised by some of his
grants of clemency. The President's comments are noteworthy in
that they contain a number of false statements and baseless
accusations. The relevant portion of the interview reads as
follows:
Question: How low [emotionally] did you go in the
months just after you left?
Clinton: I was just angry that after I worked so hard
and after all that money had been spent proving that I
never did anything wrong for money, that I'd get mugged
one more time on the way out the door. People are free
to say that they disagreed with this or that part of
the decisions I made, but there wasn't a shred of
evidence that it had been done for any improper motive.
In fact, there is a lot of evidence to the contrary. I
thought there was a little bit of a double standard in
the way I was treated, to put it mildly. And I still
do.
Question: If you had to do it all over again, would you
pardon Marc Rich?
Clinton: Probably not, just for the politics. It was
terrible politics. It wasn't worth the damage to my
reputation. But that doesn't mean the attacks were
true. The fact that his ex-wife--I didn't think they
got along--was for it and had contributed to my library
had nothing to do with it. I did it for three reasons.
Number one, the Justice Department said they were no
longer opposed and they were really for it. Had I not
granted it, it would have been the only one they wanted
publicly that [I] didn't grant. Number two, he waived
his statute-of-limitations defenses so we can get lots
of money from him [in a civil suit, if Rich returns to
the United States]. Justice Ginsburg's husband--the tax
expert--said he wasn't guilty. And the Justice
Department under President Reagan said he was wrongly
indicted in the first place. [A claim former Reagan
officials deny.] The third thing is, I received a
request from the government of Israel. They wanted him
and [Jonathan] Pollard, and I considered Pollard an
unrepentant spy and I didn't think I could pardon him.
And I wanted to do something to support the peace
process. Furthermore, [Rich's] main lawyer was Vice
President Cheney's chief of staff [Lewis Libby] and
they [conservative critics] tried to hide that.
Question: Do you think you were a little more open to
the argument, from personal experience, that
prosecutors are not infallible?
Clinton: Absolutely, I do. I do think that I was more
vulnerable--look, I don't know Marc Rich and wouldn't
know him if he walked in the door there. I was very
sensitive to prosecutorial abuse because I had seen it.
I don't know that anyone is 100 percent aware of his
motives. I don't think that's all bad for a president
to be sensitive to any kind of abuse of power.
Question: But Rich was a fugitive. . .
Clinton: Look, I'm not justifying the fugitive status.
But if we can get a couple of hundred million dollars,
whatever it is he allegedly owes, is it in the
interests of the United States to recover from him the
way we recovered from other people who violated these
oil-pricing schemes?
Question: Your brother and brother-in-law were
basically selling access to you.
Clinton: I still don't know what the facts are, except
that the evidence is I didn't grant anything [my
brother] asked me to grant. I had no idea that [my
brother-in-law] was involved in those two cases. Had I
known it, I would have turned them down. I was just
surprised and disappointed.
Question: It wasn't a great [year] for you, was it?
Clinton: Well, Buddy dying was by far the worst
thing.\1\
---------------------------------------------------------------------------
\1\ Jonathan Alter, Life is Fleeting, Man, Newsweek, Apr. 8, 2002,
at 42.
President Clinton's interview is so replete with false and
misleading statements that it is necessary to respond line-by-
---------------------------------------------------------------------------
line.
``I was just angry that after I worked so hard and
after all that money had been spent proving that I never did
anything wrong for money, that I'd get mugged one more time on
the way out the door.''
By this comment, President Clinton suggests that the
investigations into the Rich and Green pardons were a last-
minute mugging perpetrated upon him by some sort of right-wing
cabal. However, there was a widespread consensus that the
Committee's investigation of President Clinton's clemency
grants was justified. The following comments from Democratic
Members of Congress and mainstream media outlets show that the
Committee's investigation was justified and widely supported:
Representative Eleanor Holmes Norton observed at the
business meeting at which the report was approved, ``[t]he
investigation was not only warranted; I believe that the
investigation has already served an important purpose. It is
impossible for me to believe that any person contemplating
running for President of the United States or who gets that
office will again participate in the kind of pardon activity
that went on at the end of the Clinton Administration.'' \2\
---------------------------------------------------------------------------
\2\ Business Meeting, Comm. on Govt. Reform, Mar. 14, 2002, at 76.
The New York Times editorialized that ``even [the
President's] closest Democratic allies, people who stuck by him
in other dark hours, are expressing doubts and dismay. As
Senator Herb Kohl, a Wisconsin Democrat, put it, `There
probably isn't one person across the country today who is
familiar with this case who doesn't think that it's a question
of power, connection, money.' Clinton said he would be willing
to cooperate `with any appropriate inquiry.' That would
certainly be helpful. Despite the desire expressed by President
Bush and others to close the book on Clinton's presidency,
there is still a strong and legitimate interest in getting to
the bottom of this insupportable pardon.'' \3\
---------------------------------------------------------------------------
\3\ A New Front in the Pardon Investigation, N.Y. Times, Feb. 16,
2001, at A18.
Former Democratic Mayor Jerry Brown observed, ``If you're
asking about pardons, the president can give any pardon he
wants. That's in the constitution. But that doesn't stop people
from looking into it to see was there money exchanged or was
there influence . . . that wasn't appropriate. And that's
certainly a legitimate subject for investigation.'' \4\
---------------------------------------------------------------------------
\4\ The O'Reilly Factor (Fox News television broadcast, Jan. 31,
2001).
At a hearing on the Rich pardon, Senator Russell Feingold
stated that ``I do believe that legitimate questions have been
raised about the pardon of Marc Rich, in particular, and for
me, as for many Senators and many Americans, suspicions about
this pardon arise from the fact that Marc Rich's ex-wife,
Denise Rich, was a large donor to the Democratic Party--not
just a large donor, a huge donor. . . . [Denise Rich's
contributions to the Democratic Party] can't help but raise
some questions about this pardon.'' \5\
---------------------------------------------------------------------------
\5\ ``President Clinton's Eleventh Hour Pardons,'' Hearing Before
the Senate Judiciary Comm., 107th Cong. 13 (Feb. 14, 2001).
The Sunday Herald reported that ``die-hard loyalists like
James Carville are admitting the inquiries are `legitimate'
while Massachusetts Congressman Barney Frank, one of Clinton's
fiercest defenders during the Lewinsky scandal is telling
anyone who'll listen that he's `through with the Clintons.' ''
\6\
---------------------------------------------------------------------------
\6\ Marion McKeone, The Day Hillary Turned Her Back on Bill, Sunday
Herald, Feb. 25, 2001, at 17.
``People are free to say that they disagreed with
this or that part of the decisions I made, but there wasn't a
shred of evidence that it had been done for any improper
---------------------------------------------------------------------------
motive. In fact, there is a lot of evidence to the contrary.''
Rather than directly deny wrongdoing and candidly answer
questions about his decisions in the Rich case, it seems that
the former President is attempting to establish a standard
under which he can be criticized only where criminal wrongdoing
can be established. Former President Clinton's basic assertion
that there was not a ``shred of evidence'' of improper motive
is incorrect. The Marc Rich pardon is replete with evidence
that a number of the major actors had improper motives. The
first and most obvious piece of evidence is that the four major
players in the Marc Rich case--Marc Rich, Pincus Green, Denise
Rich, and Beth Dozoretz--have refused to discuss their
involvement in the case, with two of them relying on their
Fifth Amendment right against self-incrimination. The two
people closest to President Clinton who lobbied him on the Rich
and Green pardons--Denise Rich and Beth Dozoretz--have refused
to testify about their discussions with the President without a
grant of prosecutorial immunity. The consistent refusal of key
witnesses to answer questions certainly raises concerns about
their motives.
Similarly, it is unclear what the former President is
referring to when he suggests that there is ``a lot of evidence
to the contrary'' that there was improper motive. The clear
factual record established by the report demonstrates that
there was no reasonable explanation for the Marc Rich and
Pincus Green pardons. All of the explanations offered to date
by the President are factually inaccurate or totally
irrelevant.
Question: ``If you had to do it all over again,
would you pardon Marc Rich?'' Clinton: ``Probably not, just for
the politics. It was terrible politics. It wasn't worth the
damage to my reputation.''
This is one of the most shocking statements made by
President Clinton. After all of the evidence demonstrating that
Marc Rich and Pincus Green were large-scale criminals,
fugitives from justice, and traitors to their country, the
President can only bring himself to say that he ``probably''
would not grant the pardons again, ``just for the politics,''
because it was not ``worth the damage to my reputation.'' It
apparently does not concern the President that he has pardoned
two of the largest tax cheats and most wanted international
fugitives in U.S. history. It apparently is not a matter of
concern that a man who traded oil with (and thus has
financially supported) terrorist regimes ranging from Ayatollah
Khomeini's Iran to Saddam Hussein's Iraq has escaped any
punishment from the U.S. legal system. President Clinton is
apparently unconcerned that a man who attempted to renounce his
citizenship to escape the law and was described as a
``traitor'' by his own attorney is now free to return to the
United States. President Clinton is apparently not troubled
that he has undermined U.S. efforts to apprehend criminals
abroad by pardoning two of the FBI's most wanted fugitives.
The one thing that does bother President Clinton, however,
is the damage to his own reputation. During his terms in
office, President Clinton demonstrated time and again his
tendency to elevate his own interests above the interests of
the United States. Yet, his insistence on discussing the Rich
pardon only in terms of its impact on himself still manages to
demonstrate a breathtaking level of hubris. Perhaps most
important, it apparently is of no consequence to the former
President that the Rich and Green pardons send the unambiguous
message that there are two separate systems of justice: one for
the rich and one for the poor.
``I did it for three reasons. Number one, the
Justice Department said they were no longer opposed and they
were really for it. Had I not granted it, it would have been
the only one they wanted publicly that [I] didn't grant.''
The former President's claim that the ``Justice
Department'' was ``really for'' the Rich pardon is factually
incorrect. Apart from informal contacts with Deputy Attorney
General Eric Holder, the Justice Department was never informed
that the Rich pardon was even being considered until the middle
of the night on January 19-20, 2001, after the decision had
been made to grant the pardon. At that point, Associate White
House Counsel Meredith Cabe informed Pardon Attorney Roger
Adams that Rich and Green were going to receive pardons and
asked Adams to conduct an NCIC background check on them. Before
that telephone call, only Deputy Attorney General Eric Holder
had any knowledge that the Rich pardon was being considered.
Holder had known that the Rich pardon was being considered
since November 2000 but had failed to inform anyone else in the
Justice Department of that fact. None of the relevant
components of the Justice Department that would have been able
to provide an educated opinion--the prosecutors in the Southern
District of New York, the Office of the Pardon Attorney, the
FBI, and the U.S. Marshals Service--were ever asked to provide
their opinion about the case. Therefore, it is highly
misleading to say that the ``Justice Department'' was for the
Rich pardon and completely false to claim that the Justice
Department ``publicly'' supported it.
Eric Holder, of course, did privately inform White House
Counsel Beth Nolan that he was ``neutral, leaning towards'' the
Rich pardon. In the context of the unrelenting opposition to
the pardon expressed by White House staff, this was effectively
a statement of support. However, Holder had never consulted
with anyone else at the Justice Department about the Rich
pardon, and the mere fact that the Rich case was under
consideration for a grant of clemency was kept completely
secret until the pardons were granted on January 20, 2001. At
no time before or after the pardon did any Justice Department
official express public support for the pardon.
``Number two, he waived his statute-of-limitations
defenses so we can get lots of money from him [in a civil suit,
if Rich returns to the United States.]''
As explained in the report, President Clinton was
completely wrong in thinking that he somehow obtained a
valuable concession when he asked Jack Quinn to have Rich waive
his statute of limitations defenses in exchange for the pardon.
Marc Rich did not have a statute of limitations defense to
waive. As the relevant statutes make perfectly clear, an
individual who has fled the country is not entitled to use the
expiration of the statute of limitations as an affirmative
defense. In addition, it is highly unlikely that there was ever
any civil liability relating to the 1983 charges against Rich
and Green personally. Given that their companies already
discharged the corporate liability in a 1984 plea agreement, it
is even more unlikely that any personal financial liability
would remain enforceable today. Finally, Rich has always been
willing to pay hundreds of millions of dollars to avoid
criminal liability. Rather than winning some concession on
behalf of the U.S. government, President Clinton gave Marc Rich
exactly what he had wanted since 1983.
``And the Justice Department under President Reagan
said he was wrongly indicted in the first place.''
This claim by the former President is a complete
fabrication. The Justice Department has never made a statement
that even remotely resembles the claim made by President
Clinton. The Justice Department consistently defended the Rich
and Green indictment during the Reagan, Bush, and Clinton
Administrations. While it is not surprising that President
Clinton would make false statements to excuse his conduct, it
is surprising that he would make claims that are so obviously
wrong.
``The third thing is, I received a request from the
government of Israel. They wanted him and [Jonathan] Pollard,
and I considered Pollard an unrepentant spy and I didn't think
I could pardon him. And I wanted to do something to support the
peace process.''
This familiar argument is addressed thoroughly in the
Committee's report. First, the President has overstated the
extent to which the Israeli government was pushing for the Rich
pardon. The transcripts of the conversations between President
Clinton and Prime Minister Barak in the report make it clear
that Barak did not push the President on the Rich issue. More
importantly, at no point did Prime Minister Barak suggest that
the Rich pardon would have a role in the Middle East peace
process. Indeed, there is no indication that Marc Rich is a
significant player in the Middle East peace process or that his
pardon has had any role in the process. Even President
Clinton's own Middle East envoy, Dennis Ross, stated that Rich
``was not a factor in the Middle East talks.'' \7\
---------------------------------------------------------------------------
\7\ James Risen and Alison Leigh Cowan, U.S. Diplomats Turned Aside
Israeli Push on Rich's Behalf, N.Y. Times, Feb. 17, 2001, at A1.
``Furthermore, [Rich's] main lawyer was Vice
President Cheney's chief of staff [Lewis Libby] and they
---------------------------------------------------------------------------
[conservative critics] tried to hide that.''
It is true that Libby represented Marc Rich before he
sought a pardon. However, it is telling that Clinton attempts
to shift the focus to Libby given that his own White House
Counsel, Jack Quinn, was so deeply involved in the pardon
effort. Certainly, Libby's work on the Rich case raises none of
the concerns raised by Jack Quinn's representation. After all,
it was Jack Quinn, not Lewis Libby, who lobbied his former
subordinates in the White House counsel's office on behalf of
Marc Rich. It was Jack Quinn, not Lewis Libby, who likely
violated ethical standards by lobbying his former colleagues.
Finally, it was Jack Quinn, not Lewis Libby, who obtained the
pardons for Marc Rich and Pincus Green.
Moreover, President Clinton's claim that anyone tried to
``hide'' Libby's representation of Rich is nonsense. Libby
voluntarily testified before the Committee and answered every
question put to him. If anything, former President Clinton has
repeatedly attempted to distort Libby's representation of Marc
Rich. When he wrote his infamous column defending the Rich
pardon, President Clinton initially wrote that ``the [pardon]
applications were reviewed and advocated'' by three prominent
Republican attorneys: Leonard Garment, William Bradford
Reynolds, and Lewis Libby.\8\ This claim was completely false,
as Libby, Garment, and Reynolds had absolutely no involvement
in the pardon effort and had never reviewed, much less
advocated, the Rich pardon. The President's staff corrected the
column so that later editions of the New York Times stated that
Libby, Garment, and Reynolds had ``reviewed and advocated'' the
``case for the pardons.'' \9\ Even the corrected version of the
former President's column was misleading and intentionally
overstated their involvement in the Rich case.
---------------------------------------------------------------------------
\8\ Editors' Note, N.Y. Times, Feb. 19, 2001, at A15.
\9\ William J. Clinton, My Reasons for the Pardons, N.Y. Times,
Feb. 18, 2001.
The former President fails to note that, while Libby deemed
Rich a traitor, Libby had absolutely no involvement in the
pardon process. This is a crucial distinction that should not
be glossed over. Even a traitor is entitled to a legal defense,
and therefore, agreeing to represent one is defensible.
---------------------------------------------------------------------------
However, pardoning an unrepentant traitor is indefensible.
``I was very sensitive to prosecutorial abuse
because I had seen it. I don't know that anyone is 100 percent
aware of his motives. I don't think that's all bad for a
president to be sensitive to any kind of abuse of power.''
The former President's suggestion that Marc Rich was a
victim of ``prosecutorial abuse'' is insulting to the numerous
career Justice Department prosecutors who worked on the Marc
Rich case. Marc Rich and Pincus Green were indicted after a
painstaking investigation and after the Department obtained
extensive documentary and testimonial evidence against Rich and
Green. The Rich and Green case was reviewed by a number of
prosecutors at Main Justice and the Southern District of New
York, both Republicans and Democrats. President Clinton
appointed one of these men to a federal judgeship and another
became a high-level official at his Justice Department. It is
implausible to think that these dozens of prosecutors engaged
in systematic prosecutorial abuse against Marc Rich and Pincus
Green for almost twenty years and that only Bill Clinton, over
the objections of his own staff, was able to detect it. More
important, it is telling that the former President would hear
only from friends of Rich or his paid advocates. It displays a
contempt for law enforcement and the Central Intelligence
Agency that he would not even consider their views before
accepting those of Rich's highly paid mouthpieces.
``Look, I'm not justifying the fugitive status. But
if we can get a couple of hundred million dollars, whatever it
is he allegedly owes, is it in the interests of the United
States to recover from him the way we recovered from other
people who violated these oil-pricing schemes?''
When the President of the United States pardons two
unrepentant fugitives from justice, it is difficult to
comprehend how he is not ``justifying the fugitive status.'' He
is sending the message that the United States is willing to
grant the ultimate form of official forgiveness to two people
who opted to flee the country and renounce their citizenship
rather than face their legal responsibilities in a court of
law. A series of experienced prosecutors in three different
administrations decided that it was more important to send the
message that the United States took its laws seriously than to
collect a bit more money in the federal treasury. President
Clinton should have followed their lead. Rather than reward
billionaire fugitives by pardoning them and unsuccessfully
attempting to fine them a ``couple of hundred million
dollars,'' he should have supported the professionals who had
been working the case for nearly two decades by soliciting and
listening to their advice.
Question: ``Your brother and brother-in-law were
basically selling access to you.'' Clinton: ``I still don't
know what the facts are, except that the evidence is I didn't
grant anything [my brother] asked me to grant.''
It is extraordinary that the President would claim that he
does not ``know what the facts are'' regarding the clemency
lobbying efforts of Roger Clinton, Hugh Rodham, and Tony
Rodham. If it mattered to him, he could have asked his
relatives the relevant questions. Moreover, there is
substantial evidence that Roger Clinton discussed the cases of
Rosario Gambino, Steven Griggs, Jay McKernan, and a number of
other individuals with President Clinton. Similarly, there is
evidence that Tony Rodham discussed Edgar and Vonna Jo Gregory
with the President. President Clinton has never disclosed the
content of those discussions, other than to repeat his
representation that none of them successfully obtained grants
of clemency. However, the President's answer fails to address
the many questions about his knowledge and possible approval of
Roger Clinton's efforts to sell his access to the President.
``I had no idea that [my brother-in-law] was
involved in those two cases. Had I known it, I would have
turned them down. I was just surprised and disappointed.''
The President's denials of any knowledge that Hugh Rodham
was involved on behalf of Carlos Vignali and Glenn Braswell
should be viewed with some skepticism, given the inaccuracy of
his other claims in this interview. However, even if the
President's statements are true, they fail to address the
obvious question of how individuals as undeserving as Vignali
and Braswell received clemency. Moreover, the President did not
address the refusal of Hugh Rodham to return more than $150,000
to the Vignalis. In February 2001, the President and First Lady
demanded that Hugh Rodham return the $434,000 he was paid by
Vignali and Braswell. Yet, Rodham returned only $280,000,
keeping $154,000 of these fees.
II. COMMENTS BY INDIVIDUALS NAMED IN THE REPORT
A. Comments by Marc Rich attorney Peter Kadzik
On March 13, 2002, Peter Kadzik, an attorney with Dickstein
Shapiro Morin & Oshinsky, wrote to ``correct the factual
inaccuracies'' in the Committee's report.\10\ Specifically,
Kadzik took issue with the description of the Committee's
efforts to obtain his testimony for the March 1, 2001, hearing
regarding the Rich pardon. As described in the report, Kadzik
boarded a plane for California despite the fact that the
Committee had requested his testimony and, in fact, intended to
issue a subpoena for his attendance at the hearing. Kadzik
departed for California, apparently believing that the
Committee would not be willing to force him to return to
testify at the hearing. Kadzik was served a subpoena by a
United States Marshal when he exited the plane and returned the
same day so that he could testify at the hearing.
---------------------------------------------------------------------------
\10\ See Letter from Peter Kadzik, Partner, Dickstein Shapiro Morin
& Oshinsky, to the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform (Mar. 13, 2002) (Exhibit 1).
---------------------------------------------------------------------------
The central claim in Kadzik's letter of March 13, 2002, is
that ``at no point before I boarded an airplane to California
on February 28, 2001, did any member of the Committee's staff
inform me or any attorney with my firm that the Committee would
subpoena me to attend the hearing.'' As I have explained in my
response to Kadzik's letter, his claim is utterly false.\11\
Between the time that Committee staff received notice on the
evening of February 27, 2001, that Kadzik was declining to
testify voluntarily and his departure for California at 11:00
a.m. on February 28, 2001, there were at least three separate
communications between Committee staff and Kadzik's attorneys.
First, Committee staff called his attorneys on the evening of
February 27 to inform them that Kadzik would be required to
attend the hearing. Then, on the morning of February 28, 2001,
one of Kadzik's attorneys informed Committee staff that he was
unable to accept service of a subpoena for Kadzik. Then, at
9:29 a.m. on February 28, Committee staff again informed one of
Kadzik's attorneys that the Committee was issuing a subpoena
for his attendance at the hearing and asked for Kadzik's flight
number so that he could be served. It is troubling that Peter
Kadzik would make a false assertion that is so easily
disproved.
---------------------------------------------------------------------------
\11\ See Letter from the Honorable Dan Burton, Chairman, Comm. on
Govt. Reform, to Peter Kadzik, Partner, Dickstein Shapiro Morin &
Oshinsky (Mar. 15, 2002) (Exhibit 2).
---------------------------------------------------------------------------
B. Comments by Hugh Rodham
On March 14, 2002, Nancy Luque, counsel for Hugh Rodham,
sent a letter complaining about a number of conclusions in the
Committee's report.\12\ I have sent a response to Luque which
refutes the claims in her letter.\13\ Luque's letter makes a
number of inaccurate statements and baseless assertions. For
example, she objects to the report's conclusion that Rodham
extended only ``partial cooperation'' to the Committee. Yet,
Luque acknowledges that Rodham refused to discuss a number of
issues relating to the Vignali case with the Committee and
refused to participate in an interview with Committee staff. As
detailed in my response of April 16, 2002, Luque's other
objections are as baseless as her claim that Rodham fully
cooperated with the Committee.
---------------------------------------------------------------------------
\12\ Letter from Nancy Luque, Partner, Reed Smith, to the Honorable
Dan Burton, Chairman, Comm. on Govt. Reform (Mar. 14, 2002) (Exhibit
3).
\13\ Letter from the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform, to Nancy Luque, Partner, Reed Smith (Apr. 16, 2002) (Exhibit
4).
---------------------------------------------------------------------------
C. Comments by former Parole Commission Chief of Staff Marie Ragghianti
On April 3, 2002, Elaine Mittleman, counsel for Marie
Ragghianti, wrote the Committee to complain about the way the
report portrayed Ragghianti's reaction to Roger Clinton's
contacts with the U.S. Parole Commission on behalf of Rosario
Gambino and the subsequent FBI investigation.\14\ The bulk of
the letter consists of quotations from the report which are
presented in isolation and labeled conclusory, subjective, or
an unwarranted assumption. In their original context, however,
these excerpts are sound conclusions amply supported by
citations to evidence. I responded extensively to her
mischaracterizations in a letter to Mittleman on April 11,
2002.\15\
---------------------------------------------------------------------------
\14\ Letter from Elaine J. Mittleman, Counsel for Marie Ragghianti,
to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Apr. 3,
2002) (Exhibit 5).
\15\ Letter from the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform, to Elaine J. Mittleman, Counsel for Marie Ragghianti (Apr. 11,
2002) (Exhibit 6).
---------------------------------------------------------------------------
The most important factual claim in Mittleman's letter is
that the report confuses the chronology of various FBI requests
for Parole Commission assistance in its investigation of Roger
Clinton. She disputes that the FBI's first request was to have
a Parole Commission staff member introduce Roger Clinton to an
undercover agent posing as another Commission staff member. In
an effort to defend Ragghianti's opposition to this plan, which
the report correctly identifies as the FBI's first plan,
Mittleman claims that it was actually the FBI's ``third or
fourth'' proposal. She argues that this purported factual error
in the report obscures Ragghianti's true and legitimate motives
for opposing the plan. Ironically, however, Mittleman attached
documents to her letter that undermine her claim and support
the report's chronology.\16\ Many of the documents attached to
Mittleman's letter had never before been produced to the
Committee, prompting staff to inquire whether Ragghianti
retained other documents in her personal possession relevant to
the investigation of the Clinton-Gambino matter. After
receiving representations that she did have additional relevant
documents, the Committee notified Mittleman that the Committee
would issue a subpoena to Ragghianti. Before receiving the
subpoena, Ragghianti faxed 113 pages of documents to the
Committee, most of which had not been produced by the Parole
Commission. Those documents provided important new evidence and
are discussed further below in Section IV. Despite requests,
neither Mittleman nor Ragghianti has provided a written
certification that the 113-page fax contained every document
responsive to the subpoena.
---------------------------------------------------------------------------
\16\ Id. at 7-8.
---------------------------------------------------------------------------
In addition to seeking additional documents from
Ragghianti, I posed five questions to her regarding the
recently produced documents.\17\ The questions were aimed at
obtaining information about when Ragghianti first located the
documents she recently produced, whether the Parole Commission
could have produced the same documents, and why Ragghianti
retained these documents in her personal possession after
leaving the Commission. Rather than fully cooperate with the
Committee by answering the questions candidly and forthrightly,
Ragghianti provided a non-responsive submission through her
counsel that quarreled with the questions rather than answering
them. For example, in reply to the question, ``When did you
locate the documents responsive to the subpoena,'' Mittleman
wrote, ``[t]his question implies that there was an outstanding
document request for the documents responsive to the
subpoena.'' \18\ Of course, regardless of whether the question
implies what she claims, the reply does not even approach an
answer to the question. Similarly, in response to two other
questions about whether the newly produced documents had come
from Commission files, Mittleman merely complained that the
questions were not explicitly limited to Ragghianti's personal
knowledge and did not ``identify what files are considered to
be `Parole Commission files.' '' \19\ That Ragghianti cannot
provide information of which she is unaware is simply an
obvious truism that needs no explicit reference. Moreover,
``Commission files'' are, as anyone can deduce with minimal
thought, files that were located in the Parole Commission
offices and were produced in the course of Parole Commission
business. This sort of hairsplitting appears to be nothing more
than a fig leaf to cover Ragghianti's obvious unwillingness to
answer the questions posed. Why she is unwilling to cooperate
fully with the Committee's investigation is unclear, but it may
be related to the reason she was unwilling to cooperate fully
with the FBI's investigation, which is discussed further below.
---------------------------------------------------------------------------
\17\ Id. at 1-2.
\18\ Letter from Elaine J. Mittleman, Counsel for Marie Ragghianti,
to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform 2-3 (Apr.
15, 2002) (Exhibit 7).
\19\ Id.
---------------------------------------------------------------------------
D. Comments by Los Angeles County Sheriff Leroy Baca
On April 4, 2002, Steven Madison, counsel for Los Angeles
County Sheriff Baca, submitted a lengthy letter complaining
about the Committee report.\20\ The report took issue with
Sheriff Baca's role in the Vignali commutation, finding that he
had a close relationship with Horacio Vignali based on
Vignali's large financial contributions to Baca's campaigns.
This relationship resulted in a conversation between Sheriff
Baca and the White House in which he supported the commutation
of Carlos Vignali. The report found Sheriff Baca's efforts on
behalf of the Vignalis especially troubling because there were
numerous law enforcement reports containing allegations that
Horacio Vignali was involved in trafficking illegal drugs and,
in fact, served as the source of cocaine for his son. The
Committee was concerned with Sheriff Baca's failure to conduct
any due diligence before he called the White House and his
apparent ignorance of the serious allegations against Horacio
Vignali.
---------------------------------------------------------------------------
\20\ Letter from Steven G. Madison, Partner, Quinn Emanuel Urquhart
Oliver & Hedges, to the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform (Apr. 4, 2002) (Exhibit 8).
---------------------------------------------------------------------------
Sheriff Baca made three main complaints about the report.
First, he claimed that Committee procedures were unfair.
Second, he claimed that he actually opposed clemency for Carlos
Vignali. Third, the Sheriff suggested that he was unable to
conduct any due diligence that would have led to the discovery
of the allegations against Horacio Vignali. Each of the
Sheriff's complaints is without merit, and I have responded to
the complaints fully in a letter to Sheriff Baca's
attorney.\21\
---------------------------------------------------------------------------
\21\ Letter from the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform, to Steven G. Madison, Partner, Quinn Emanuel Urquhart Oliver &
Hedges (Apr. 12, 2002) (Exhibit 9).
---------------------------------------------------------------------------
In my reply to Sheriff Baca, I posed a number of questions
regarding his response to the Committee's report. His letter
made it appear that the Sheriff somehow obtained certain draft
pages of the report, which Committee staff had shared with a
California law enforcement official to ensure that the report's
discussion of the allegations against Horacio Vignali did not
endanger any confidential informants. It appears that his
discovery of these draft pages of the report led Sheriff Baca
to return the political contributions he received from Horacio
Vignali. Among other questions, I asked the Sheriff to explain
how he learned that the Committee was going to discuss the
allegations against Horacio Vignali in the report and how much
of Vignali's money he had returned. Sheriff Baca has refused to
answer these questions by the proscribed deadline. Therefore, I
must conclude that he is now refusing to cooperate with the
Committee's inquiry. I find his refusal to cooperate with a
Congressional investigation almost as disturbing as his refusal
to accept responsibility for his role in the Vignali clemency
matter or his advocacy on behalf of an alleged drug dealer.
E. Public Comments by the Bush White House
While the Committee did not receive a direct response to
its report from the Bush White House, a spokeswoman for the
White House did provide a statement about it to The New York
Times. Anne Womack responded to the report's criticism of the
Bush Administration for failing to produce documents related to
the Rosario Gambino matter, the release of which former
President Clinton did not even seek to block. Womack said that
``some unproduced files were highly sensitive and had yet to be
formally requested by the Committee.'' \22\ Anyone familiar
with facts in this case would not have made that statement in
good faith. The Committee ``formally requested'' in writing
Gambino-related records from the National Archives. On March 8,
2001, the Committee requested ``all records relating to any
requests for clemency made by . . . Roger Clinton on behalf of
any individual.'' On June 18, 2001, the Committee requested
``all records relating to the consideration of an executive
grant of clemency for Rosario Gambino.'' Contrary to Womack's
claim, there were actually not one but two formal, written
requests that covered the documents in question.
---------------------------------------------------------------------------
\22\ Alison Leigh Cowan, Panel Says Top Justice Dept. Aide Held
Information on Rich's Pardon, N.Y. Times, Mar. 13, 2002, at A23.
---------------------------------------------------------------------------
Moreover, the National Archives acknowledged these requests
in writing. On August 2, 2001, the Archives said--in what it
called its ``final response'' to our June 18th request--that
``[p]ursuant to your prior discussions with the White House
Counsel's Office, we are not providing four responsive
[Gambino-related] documents . . . that contain internal
Government deliberations.'' It is clear, however, that the
requests were legally proper in form and should have been
complied with. The Committee requested the records by letter
rather than subpoena because a subpoena was unnecessary. Under
the Presidential Records Act, the Committee has statutory
authority to have access to the records of a previous
administration through the National Archives and without a
subpoena.\23\
---------------------------------------------------------------------------
\23\ 44 U.S.C. Sec. 2205(2)(c).
---------------------------------------------------------------------------
III. NEW INFORMATION ABOUT JACK QUINN'S FEE ARRANGEMENTS
The report left unresolved two issues regarding Jack
Quinn's financial relationship with Marc Rich: (1) did Quinn
expect Rich to pay him for his work on the pardon after leaving
Arnold & Porter and (2) did Rich pay Quinn after the pardons
were issued.\24\ These questions were initially prompted by
Jack Quinn's unbelievable claim that he worked on the Rich
pardon without any expectation of payment and by the belated
production of records that had been withheld from the Committee
on claims of attorney-client and work product privileges for
over a year. The records were produced in the aftermath of a
court decision finding that those privilege claims were
invalid. With regard to the first issue, the report detailed
several newly produced e-mails indicating that Quinn was
negotiating a retainer agreement with Marc Rich just before he
began working on the pardon request. However, both Jack Quinn
and Robert Fink refused to be interviewed regarding these e-
mails. With regard to the second issue, some of the newly
produced e-mails also indicated that, after the Committee's
hearings, Quinn sought to enter a retainer agreement with Rich.
Given Quinn's statements to the Committee that he would not
accept any money from Rich for his work on the pardon effort,
the mention of a post-pardon retainer agreement raised further
questions. Once again, however, Quinn refused to be interviewed
about these e-mails.
---------------------------------------------------------------------------
\24\ See generally, Chapter One, Section II.D., ``Quinn's Fee
Arrangements.''
---------------------------------------------------------------------------
Since Quinn refused requests for a voluntary interview, the
Committee issued a document subpoena to him on March 6, 2002,
in an attempt to obtain some clarification of his financial
arrangements with Marc Rich. On April 15, 2002, Quinn's
attorneys produced a set of responsive documents and also
provided a log of documents being withheld on claims of
attorney work product and attorney-client privileges.\25\ All
of the withheld documents are described as ``Privileged
communication concerning work for Marc Rich unrelated to
efforts to obtain Pardon.'' \26\ It appears, therefore, that
Quinn is engaged in additional legal work for Rich on other
matters. Obviously, however, due to the assertions of privilege
and Quinn's refusal to be interviewed, the precise nature of
that work and the total size of Rich's payments to Quinn remain
unknown.
---------------------------------------------------------------------------
\25\ Letter from Victoria Toensing, Partner, diGenova & Toensing,
to David Kass, Deputy Chief Counsel, Comm. on Govt. Reform (Apr. 15,
2002) (Exhibit 10).
\26\ Id.
---------------------------------------------------------------------------
The documents that were produced, however, may explain some
of the e-mails regarding negotiations to enter a retainer
agreement after the Committee's hearings on the Rich matter.
Rich and Quinn apparently entered into a retainer and
indemnification agreement sometime around March 6, 2001.\27\
The agreement called for a payment by Marc Rich of $300,000 to
retain Quinn to represent Rich ``in connection with legal
proceedings arising out of (but not in connection with efforts
to secure) his pardon.'' \28\ Under the terms of the agreement,
Quinn provided Rich with monthly invoices detailing his time
and expenses due to undertaking ``unexpected additional legal
work in defense of your pardon'' to be drawn against the
$300,000 retainer.\29\ The agreement also retroactively covered
Quinn's time and expenses, dating back to January 22, 2001. For
January through March 2001, Quinn billed and received from Rich
at least $128,100.\30\ Throughout the rest of 2001, Quinn
billed another $97,240.\31\
---------------------------------------------------------------------------
\27\ Jack Quinn Document Production JQC 00070-71 (Letter from Jack
Quinn to Marc Rich (Mar. 6, 2001)) (Exhibit 11).
\28\ Id.
\29\ Id.
\30\ Jack Quinn Document Production (2001 Billing Records for Marc
Rich) (Exhibit 12).
\31\ Id. at JQC 00107.
---------------------------------------------------------------------------
Although these documents provide a slightly better
understanding of Quinn's fee arrangements with Rich, they do
not explain Quinn's claim to have worked on the Rich pardon on
a pro bono basis. Despite the evidence discussed in the report
of detailed negotiations on a retainer agreement in the summer
of 2000, Quinn refuses to answer any questions about the
matter, apparently standing by his earlier claims that no
agreement on his compensation was made before the pardons were
granted. Moreover, the documents Quinn produced in April 2002
fail to resolve the issues raised by the e-mails regarding
retainer discussions in 2000. The documents do explain the
terms under which Quinn was reimbursed for his time, legal
fees, and expenses incurred in 2001 as a result of the various
investigations of the Rich pardon by Congressional committees
and a New York grand jury. However, questions remain unanswered
about the nature and extent of his other ``unrelated'' legal
work for Rich due to his assertions of attorney-client
privilege and his outright refusal to be interviewed by the
Committee. Without Quinn's full cooperation, the complete
picture of his financial relationship with Marc Rich remains
unknown.
IV. NEW EVIDENCE REGARDING MARIE RAGGHIANTI'S EFFORTS TO PROTECT ROGER
CLINTON
On April 9, 2002, former U.S. Parole Commission Chief of
Staff Marie Ragghianti faxed to the Committee 113 pages of
documents that had been in her personal possession since she
left the Commission.\32\ Most of the documents had not been
previously provided to the Committee by the Parole Commission
despite the fact that they appear to have been created in the
course of Commission business. Therefore, copies should have
been retained in Parole Commission files. Many of the documents
provide a contemporaneous record of Ragghianti's opinion of the
unfolding FBI investigation and thus shed new light on her
motivations for opposing to full cooperation with the FBI. As a
result, a new picture emerges, one that is less flattering to
Ragghianti than the original.
---------------------------------------------------------------------------
\32\ Fax from Elaine J. Mittleman, Counsel for Marie Ragghianti, to
the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Apr. 9,
2002) (Exhibit 13).
---------------------------------------------------------------------------
A. Factual Disputes Resolved by Newly Produced Documents
1. Ragghianti's Knowledge of Roger Clinton's Initial
Attempts to Influence the Commission
The newly produced documents resolve two factual disputes.
As discussed in my response to Ragghianti's counsel, one of the
newly produced documents resolves a conflict between statements
to Committee staff by Ragghianti and General Counsel Michael
Stover.\33\ Stover said he had provided a 1996 memo to
Ragghianti about his first and only contact with Roger
Clinton.\34\ The memo, quoted extensively in the report,
illustrated Roger Clinton's crude attempt to exert political
pressure on Stover. Roger Clinton was attempting to arrange an
improper meeting with a Commissioner to discuss the Gambino
case. Clinton pressured Stover to arrange the meeting through
repeated references to his brother's authority as President,
explaining that President Clinton had suggested that Roger meet
with a Commissioner. Stover said he had provided the document
to Ragghianti, who had not been employed by the Commission in
1996, in an attempt to inform her of Clinton's past misconduct
and dissuade her from meeting with Roger Clinton in the future.
Marie Ragghianti, however, denied she had ever seen the memo
until her July 2001 interview with Committee staff. \35\ Her
denial appears to be false, given her own words in a document
recently produced to the Committee. The document is a 1998
draft e-mail from Ragghianti to deputy ethics officer Sharon
Gervasoni. In it Ragghianti writes, ``I suppose you are
referring to my statement that I felt that Michael [Stover] had
been `gratuitously rude' to Roger [Clinton]--an inference I
made based on a memo that I believe Michael S. wrote in a memo
[sic] for the file[.]'' \36\ This statement establishes that
Ragghianti had indeed seen the memo before and that it was the
basis for her opinion about Stover having been ``gratuitously
rude'' to Clinton. This evidence also contradicts her earlier
claim that the basis of her statement about Stover being rude
was something Chairman Michael Gaines had told her.
---------------------------------------------------------------------------
\33\ Letter from the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform, to Elaine J. Mittleman, Counsel for Marie Ragghianti n.1 (Apr.
11, 2002) (Exhibit 6).
\34\ Chapter Two, Exhibit 42.
\35\ See Chapter Two, n.230 and accompanying text.
\36\ Marie Ragghianti Document Production (Draft e-mail from Marie
Ragghianti, Chief of Staff, Parole Commission, to Sharon Gervasoni,
Deputy Designated Agency Ethics Officer, Parole Commission (Sept. 23,
1998)) (Exhibit 14).
---------------------------------------------------------------------------
Ragghianti unequivocally denied she had ever seen the
Stover memo. She said she was certain that if she had ever seen
it, she would have remembered it.\37\ Moreover, absent
knowledge of Clinton's prior inappropriate efforts to exert
political pressure, it would be somewhat understandable for
staff to meet with him like any other member of the public.
Accordingly, her denial that she ever saw the memo made the
defense of her meetings with Clinton more plausible. Given
these newly produced records, however, it appears that she was
fully aware of Clinton's prior misconduct and, therefore,
should have declined further meetings with him. Additionally,
other conflicts between her versions of events and Stover's
version of events should now be viewed in a new light, given
Ragghianti's diminished credibility.
---------------------------------------------------------------------------
\37\ Chapter Two, n.230.
---------------------------------------------------------------------------
2. The Chronology of the FBI Requests for Assistance from
the Commission
As the report explains, Ragghianti refused to grant the
FBI's first request for assistance from the Commission: to have
Tom Kowalski introduce Roger Clinton to an undercover agent
posing as a Commission staffer at a meeting in a local
restaurant. The report criticizes Ragghianti for opposing the
undercover agent plan. In her response, Ragghianti's lawyer
defended Ragghianti's opposition by claiming that the report
had confused the chronology and thus misunderstood Ragghianti's
motive. In Ragghianti's version of events, the undercover agent
plan was not the FBI's first request but its ``third or
fourth,'' \38\ and her motive for opposing it was merely a
legitimate concern that the Commissioners had not approved it.
Ragghianti claimed she was put in an awkward position. The
Commissioners had instructed her not to discuss the FBI's
investigation with them any further due to concerns that they
might have to recuse themselves from making a decision in the
Gambino case. Therefore, according to Ragghianti, when the FBI
``revised'' its request to include a restaurant meeting and an
undercover agent, she could not approve the plan because she
could neither seek guidance from the Commissioners nor allow
involvement beyond what they had approved.
---------------------------------------------------------------------------
\38\ Letter from Elaine J. Mittleman, Counsel for Marie Ragghianti,
to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform 13 (Apr.
3, 2002) (Exhibit 5).
---------------------------------------------------------------------------
The documents Ragghianti produced, however, contradict
nearly every aspect of her story and provide further evidence
for the report's contention that the undercover agent plan was
the first proposed by FBI. Moreover, the documents also provide
new evidence that, in fact, the Commissioners had approved the
undercover agent plan. Thus, in opposing it, Ragghianti was not
carrying out the will of the Commissioners, but thwarting it.
One document contradicting Ragghianti's story was attached to
Mittleman's April 3, 2002, letter and is discussed in my
reply.\39\ Other documents produced on April 9, 2002, also
undercut her story. For example, in Ragghianti's typewritten
notes of a March 22, 1999, meeting with deputy ethics officer
Sharon Gervasoni, she writes:
---------------------------------------------------------------------------
\39\ Letter from the Honorable Dan Burton, Chairman, Comm. on Govt.
Reform, to Elaine J. Mittleman, Counsel for Marie Ragghianti 7-8 (Apr.
11, 2002) (Exhibit 6).
I then recounted the events of Fri. afternoon,
beginning with [Tom Kowalski's] report that RC had
called him again, asking for an interview this week,
and Tom's subsequent call to [FBI Special Agent] Jackie
Dalrymple, his telling me afterward that they would be
setting up a callback (to Roger) on Sat. which would
result in a meeting at the Holiday Inn restaurant,
Tom's wearing a body bug, etc. I told her what the
original scenario had been (& also that I had
personally opposed it--but that the [Commissioners] had
voted 2 (for)-1 (abstention) that they would not oppose
the Bureau's plan for Tom to introduce one of their
agents as a member of our legal staff, etc.), and that
the original plan did not include Tom's wearing a body
bug. I also told her of my concerns that the Commission
had not been given good legal advice re: its conduct of
the entire affair, especially since [Michael Stover's]
& my Fri. conversation with [Chief of Staff to the
Deputy Attorney General Kevin Ohlsen and Associate
Deputy Attorney General David Margolis] suggested that
Margolis saw the Commission's responsibilities as I
did, & not as Michael [Stover] did.
* * *
I informed her that since Margolis's perception
appeared to match my own, as far as the Commission's
right to maintain its normal authority in directing its
employee in the conduct of USPC business (without fear
of obstruction accusations), I now felt that it was
appropriate to instruct Tom that he should conduct any
further business with Roger C. as he normally would,
and that this did not appear to include a meeting at a
local restaurant where he might introduce a Bureau
agent as a member of our legal staff.\40\
---------------------------------------------------------------------------
\40\ Marie Ragghianti Document Production (Notes of Meeting with
Sharon Gervasoni, Mar. 22, 1999) (Exhibit 15) (emphasis added).
This document provides further evidence that the FBI's original
request was indeed to have an agent pose as a Commission
staffer. Moreover, it establishes that the Commissioners had
explicitly approved this plan by a vote of two-to-one and that,
despite this explicit approval, Ragghianti instructed
Commission staffer Tom Kowalski not to assist the FBI by
introducing the undercover agent to Roger Clinton. Far from
working conscientiously to implement the Commissioners' will as
she has claimed, Ragghianti actually worked against it. She
rationalized her determination to set aside the Commissioners'
decision through a claim that the Commissioners ``had not been
given good legal advice'' by the Commission's General Counsel,
Michael Stover.\41\ Ragghianti replaced the Commissioners'
judgment with her own and vetoed the FBI's original plan, which
the Commission had explicitly authorized. Her actions suggest a
level of opposition to a legitimate law enforcement inquiry not
contemplated in the report. In light of this new evidence,
perhaps the report's rather neutral assessment of her
motivations (that at best she was not objective) is too
generous.
---------------------------------------------------------------------------
\41\ Id.
---------------------------------------------------------------------------
B. Ragghianti's Attitude Towards the FBI's Investigation of Roger
Clinton
In reassessing Ragghianti's motivations, other newly
produced documents are also useful in that they provide insight
into Ragghianti's state of mind at the time of the FBI
investigation. Several of the documents she recently produced
contain her candid and contemporaneous thoughts about the
unfolding FBI investigation in an emotionally laden, diary-like
tone. They contain extraordinary expressions of affinity for
Roger Clinton and a desire to inform the White House about the
investigation. In one document, Ragghianti writes, ``I have
felt guilty about not telling the WH, however, from what I've
seen, it would be easy to be accused of obstructing justice if
I did.'' \42\ As explained in my response to Ragghianti's
attorney, it is disturbing that Ragghianti would not aspire to
more than merely avoiding criminal obstruction. This statement
illustrates that, remarkably, the only deterrence against her
tipping-off the White House was indeed a fear of being held
legally accountable if she did.
---------------------------------------------------------------------------
\42\ Marie Ragghianti Document Production (Notes for the File, Jan.
14, 1999) (Exhibit 16).
---------------------------------------------------------------------------
Ragghianti's counsel has argued that Ragghianti ``worked
diligently to facilitate the FBI investigation'' and that she
objected only ``to the extent it did not interfere with or
violate the Commission's normal conduct of business.'' The
implication that Ragghianti's opposition to certain FBI
requests was measured and limited is contradicted by a recently
produced document in which Ragghianti described the
circumstances leading to the recording of a conversation
between Clinton and Tom Kowalski in Parole Commission offices.
Her notes reflect that Ragghianti was against even this plan (a
compromise from the FBI's original undercover agent plan). In
discussing the FBI's compromise proposal with Tom Kowalski and
Sharon Gervasoni, Ragghianti was reluctant to allow any
surreptitious recording at all. Rather, she wanted Kowalski to
simply place a recorder on the desk in front of Clinton. After
being convinced by Kowalski and Gervasoni who made ``as strong
a case as possible,'' she wrote, ``finally and agonizingly, I
relented[.]'' \43\ She continued, ``I hardly slept that night,
and came in Tuesday morning, determined to call Margolis to
clarify whether he had meant we should record the interview
with RC openly or surreptitiously.'' \44\ That Ragghianti would
believe an open recording of Clinton would be of any benefit
whatsoever to the FBI's investigation stretches credulity.
According to her notes, Ragghianti did call Margolis, and he
convinced her to allow the recording to occur. The argument he
made that finally persuaded her, however, provides further
insight into her motivations. She wrote:
---------------------------------------------------------------------------
\43\ Marie Ragghianti Document Production (Notes of Meeting with
Sharon Gervasoni, Mar. 22, 1999) (Exhibit 15).
\44\ Id. This document also contains yet another confirmation that
the chronology in the report is correct. Ragghianti wrote, ``[Michael
Stover] had strongly supported the original plan (for Tom to introduce
a Bureau agent as a member of our legal staff at a nearby restaurant,
etc.)[.]'' Id. (emphasis added).
A recording, [Margolis] said, made it less likely that
there would be any misunderstanding. He even said that
a recording might be ``fairer to RC''--in that it could
get the entire matter resolved as soon as possible.
(THIS got my attention, and rang true). He went on to
say that otherwise, the whole thing ``could linger
forever--or indefinitely.'' And down the road, he said,
who knows what may happen?
* * *
However, this discussion with him had persuaded me that
I really had no recourse but to allow the recording to
proceed, even though it made me very unhappy.\45\
---------------------------------------------------------------------------
\45\ Id.
On the morning the recording was to occur, Ragghianti
appears to have interjected herself into the process by
coaching Kowalski on how to behave during the meeting. Her
objective in doing so appears to have been to prevent any
unguarded discussion of the kind the FBI wished to record.
Describing her visit to Kowalski's office just before Clinton's
---------------------------------------------------------------------------
scheduled arrival, Ragghianti wrote:
I was disconcerted to find Jackie & Kevin [the FBI
agents] in his office, because, as I've already said, I
had no idea that they would be monitoring the visit
with RC, installing microphones in the ceiling & desk,
etc. (I thought Tom would simply place one of our
little recorders in his desk drawer.) When I saw them,
I was not at all happy, but kept it to myself[.]
I felt that they were waiting for me to leave, and I
was waiting for them to leave. But not wanting to do
anything hostile, I made a decision to just go ahead &
openly tell Tom what I had come to tell him, re:
opening his mtg. with RC by saying this would be their
last mtg., etc. & then referencing my October letter,
etc. I emphasized once more that he should conduct the
visit as he would normally conduct any interview, etc.
Jackie then picked up a large black canvas shoulder bag
and said I'll go get the car & meet you (Kevin) out
front. I went out with her, but stopped at a nearby
office, killing time & waiting for Kevin to leave. He
didn't. Finally, I saw both Tom & Kevin standing at the
window, obviously watching for RC's arrival. At that
point, I went back into T's office, and said, ``Now
remember, Tom--business as usual!'' And he answered, in
a joking way (tho [sic] I knew he was serious), ``Yes
M'am!'' I then left, and went up to watch & wait for
RC.\46\
---------------------------------------------------------------------------
\46\ Id.
Following Ragghianti's attempt to influence the content of the
meeting, she goes on to describe her activities during and
after the meeting. After describing Clinton's arrival and her
---------------------------------------------------------------------------
observations of the agents' movements, Ragghianti wrote:
It became increasingly clear that [the agents] must be
listening to the RC/Tom meeting from their car, & I was
distraught, but helpless. At that point, all I could do
was pray.
After a seemingly interminable period of time, I
decided to go see what I could see of Tom's office. I
was so distraught that I absentmindedly went UP stairs
(to the roof) instead of DOWNstairs where Tom's office
is.\47\
---------------------------------------------------------------------------
\47\ Id.
In another document, Ragghianti describes her conversation with
---------------------------------------------------------------------------
Kowalski. She wrote:
Evidently, I arrived immediately following RC's exit,
and immediately prior to Kevin & Jackie's return--I
said, Tom--has he gone? And he said yes, he just left.
I said how'd it go & he said--it went great, he didn't
say anything out of line, it was just fine! I said
thank God, are you sure? And he said, yes, he just said
all the usual things--the things he's said before, and
he didn't say anything unusual--was exactly like we
thought it'd be. I was greatly relieved.\48\
---------------------------------------------------------------------------
\48\ Marie Ragghianti Document Production (Notes of Conversation
with Jackie Dalrymple and Kevin O'Connell, Special Agents, Federal
Bureau of Investigation, and Tom Kowalski, Case Operations
Administrator, Parole Commission, Mar. 23, 1999) (Exhibit 17).
After the recording,\49\ Ragghianti was upset to learn that
before the meeting between Kowalski and Clinton, the FBI agents
had asked Kowalski to ``offer to set up Roger with `one of our
analysts' by giving him a telephone number.'' \50\ Kowalski
told Ragghianti he had not done it and that ``he figured they
were probably annoyed.'' \51\ Ragghianti wrote, ``My private
reaction was that I doubt they are as annoyed as I am at
hearing that they asked for this, which was certainly not in
the sphere of what they knew I had asked of Tom.'' \52\
Ragghianti's comment demonstrates the detailed level of control
she insisted on having over the FBI's requests and her
animosity toward any attempt by the agents to enhance the
Commission's level of cooperation. Why should this request have
annoyed Ragghianti? If her concerns were merely to minimize
Commission involvement and insulate the integrity of its
decisionmaking function, then nothing about the agents' request
should have been annoying at all. Since it would have
redirected future contacts with Roger Clinton to the FBI rather
than to the Commission, it would actually have alleviated
Ragghianti's purported concerns.
---------------------------------------------------------------------------
\49\ As noted in the report, the Justice Department refused to
produce to the Committee a transcript or a copy of the recorded
meeting. However, Tom Kowalski did write a memo summarizing the meeting
on the day it occurred, March 23, 1999. Curiously, this memo was not
produced to the Committee by the Parole Commission but only recently by
Marie Ragghianti. Marie Ragghianti Document Production (Memorandum from
Thomas C. Kowalski to File, Mar. 23, 1999) (Exhibit 18).
\50\ Marie Ragghianti Document Production (Notes of Meeting with
Sharon Gervasoni, Mar. 22, 1999) (Exhibit 15).
\51\ Id.
\52\ Id.
---------------------------------------------------------------------------
These new documents clearly demonstrate not only the
factual inaccuracies of Ragghianti's response to the
Committee's report but also her unusual predisposition against
the FBI's legitimate requests and toward protecting Roger
Clinton from the potential consequences of his advocacy for
Rosario Gambino.
[The exhibits referred to follow:]