A Pardon to Remember (The Marc Rich Debacle)

George Lardner Jr. - The New York TImes - November 22, 2008

Washington - WHEN President Bill Clinton pardoned a billionaire fugitive from justice on his last day in office, even usually loyal Democrats were dismayed. Representative Henry Waxman of California called it "bad precedent" and "an end run around the judicial process." He said it appeared to set a double standard for the wealthy and powerful.

The billionaire was Marc Rich, a commodities trader, and his pardon is a subject of discussion again because Eric Holder, Mr. Clinton's deputy attorney general at the time and a key figure in the clemency process, is reported to be Barack Obama's choice for attorney general. In the years since the Rich pardon, Mr. Holder has said he "never devoted a great deal of time to this matter." He also told an interviewer that, in hindsight, he wished that the Justice Department had been "more fully informed" about the case. As someone who helped cover the story for The Washington Post, I think the issue is far more complicated and deserves more scrutiny if Mr. Holder is to become our top law-enforcement official.

A little history first. In 1983, Marc Rich was indicted along with his partner, Pincus Green, and their companies on 65 counts of defrauding the I.R.S., mail fraud, tax evasion, racketeering, defrauding the Treasury and trading with the enemy. (The last of these was for an oil deal with Iran while it held American hostages.) On hearing that they were about to be prosecuted, they fled to Switzerland. For the next 17 years, Mr. Rich ducked extradition requests as well as attempts by federal marshals to arrest him in France, England, Finland and elsewhere.

Mr. Rich's lawyers tried repeatedly to reach a deal with federal prosecutors in New York that would keep him out of jail if he returned. Though his companies pleaded guilty and paid $200 million in fines and other penalties, Mr. Rich insisted that the case against him was weak. The prosecutors offered to drop the racketeering charges and to let Mr. Rich free on bail (without a passport) if he would return. Mr. Rich refused.

The story of how the fugitive came to be pardoned by President Clinton was the subject of a painstaking study by the House Government Reform Committee. While the committee's report is the subject of some controversy - its Republican chairman, Dan Burton of Indiana, was accused of partisanship - the staff that compiled the documentation was thoroughly professional. All the citations and facts that follow are supported by testimony before the committee or its staff's documentary evidence.

In 1999, Mr. Rich hired Jack Quinn, who had been Mr. Clinton's White House counsel from 1995 to 1996, to help him advance his cause. The Rich team was still hoping to strike a deal with federal prosecutors in New York, who were in charge of the case. An e-mail message to Mr. Rich from one of his New York lawyers said that Mr. Quinn felt "he could convince Eric that it made sense to listen to the professors and that he could convince Eric to encourage Mary Jo to do the same." The "professors" were two tax experts paid more than $96,000 for a study based solely on statements provided them by the Rich legal team; "Mary Jo" was Mary Jo White, the United States attorney in New York.

Mr. Holder was not unsympathetic. He told Mr. Quinn in November of 1999 that he considered the New York prosecutor's persistent refusal of a meeting "ridiculous" and that "the equities" were on Mr. Rich's side. Mr. Holder told Mr. Quinn to write a letter to Ms. White with a copy to him, and promised to call her when it arrived. Mr. Holder then called Ms. White personally and, after that conversation, told Mr. Quinn she "didn't sound like her guard was up." But New York stood firm.

On Nov. 18, 2000, Mr. Quinn told Mr. Holder that Mr. Rich was going to go for a pardon, a step his team had been contemplating for months. After the conversation, Mr. Quinn told colleagues that Mr. Holder had advised him to "go straight to" the White House and that the "timing is good." On Dec. 11, just over a month before Mr. Clinton was to leave office, Mr. Quinn delivered the pardon papers to the White House. "The greatest danger lies with the lawyers," Mr. Quinn wrote in an e-mail message to an aide to Mr. Rich, referring to the prosecutors in New York. "I have worked them hard and I am hopeful that E. Holder will be helpful to us."

Under the rules governing pardon petitions - rules that were approved by Mr. Holder's office - the views of United States attorneys "are given considerable weight" because of the "valuable insights" they have. And yet Mr. Holder did not consult Ms. White and her colleagues about the Rich pardon petition; they did not know of it until it had been granted.

Then, on Jan. 19, 2001, Mr. Holder delivered his pardon assessment to the White House, telling Beth Nolan, the White House counsel, that he was "neutral leaning favorable" on the Rich pardon. His decision, he added, was influenced by the support of Ehud Barak, the Israeli prime minister.

The people in the United States attorney's office in New York weren't the only ones surprised by Mr. Holder's decision. Deborah Smolover, his top deputy for pardon cases, did not find out about the pardon for Mr. Rich until the White House called to inform her of it after midnight on Jan. 20. (Mr. Green won a pardon, too.) After the pardon was signed, Mr. Quinn has testified, Mr. Holder called him to commend him on "a very good job." Mr. Holder also asked Mr. Quinn to consider hiring two former aides, one of whom had already contacted Mr. Quinn on Jan. 2 "at Holder's suggestion."

The precedent against pardons for fugitives was set more than 200 years ago by President John Adams. The charge, brought in 1799, was murder on the high seas against a ship's captain who was clearly trying to put down a mutiny. But the mutineers made it back to the States, ready to testify against the captain, while his supporters were still at sea. The captain was afraid to return. Asked to approve a nolle prosequi (a notice that prosecution won't be pursued, a procedure then treated as part of the pardon power), the president consulted his cabinet, which concluded that a trial should come first and a pardon, if justified, after that. Clemency, wrote Secretary of War James McHenry, should be exercised only with "great caution and on the fullest information."

Mr. Holder never came close to meeting that standard. He had the last word at Justice on clemency petitions and he saw to it that he had the only word. He brokered one of the most unjustifiable pardons that an American president has ever granted.

Bio Note: George Lardner Jr., an associate at the Center for the Study of the Presidency, is working on a history of the presidential pardon power.