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Senate Judiciary Committee Holding Hearing on Marc Rich PardonAired February 14, 2001 - 10:57 a.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: Our live coverage continues now on Capitol Hill. Were keeping watch over the Senate Judiciary hearing on the Clinton pardons.
Also we're watching a hearing on the House side of the Capitol, where television news executives about to sit on the hot seat about went wrong on election night, when all the television networks first called Florida for Al Gore and then retracted it and then called Florida for George W. Bush and had to retract that one as well. I'm sure you remember the evening well. The House Energy and Commerce Committee hearing will be getting under way shortly.
We will go to that live. We've been told that the committee will show a montage of the mistaken calls by the networks, and when that begins, we will be showing that to you live here on CNN.
Meanwhile, while we wait for that to happen, we're going to go back to the Senate Judiciary Committee, talking about the pardon of financier Marc Rich.
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SEN. JEFF SESSIONS (R), ALABAMA: ... bribery in the United States, if a person takes a thing of value for them self or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense. And I think at this point, from what I see, the FBI and the United States Attorney's Office in New York ought to be looking at this matter.
I feel real strongly about it, Mr. Chairman, and thank you for your leadership.
SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you very much, Senator Sessions.
SEN. CHARLES SCHUMER (D), NEW YORK: Thank you, Mr. Chairman.
Mr. Chairman, the issues we're examining today are as perplexing as they are troubling. To my mind, there can be no justification for pardoning a fugitive from justice. It does not matter that the fugitive believed the case against him was flawed or weak. It does not matter that the fugitive was enormously philanthropic. Pardoning a fugitive stands our justice system on its head and makes a mockery of it. One of the great strengths of our criminal justice system is that it is just that, a system. By allowing someone to choose to opt out of that system by fleeing and then opt into that system to get a pardon perverts the system entirely.
But where does that leave us going forward? All hundred of us in the Senate might disagree with this pardon, but there's a whole lot of nothing we can do about it. In the Constitution, the president's power to pardon is absolute. The president, in the wisdom of the founding fathers, can pardon anyone, for any reason at all. It is a power of the president that is kept in check only by the ballot box and the judgment of history. To change the Constitution requires careful thought and should not be based on one case or one moment in history. And a statutory framework requiring the president to follow certain steps before issuing a pardon would surely be unconstitutional.
So I think we should be leery of going overboard in launching new rounds of extended congressional investigations and hearings that could divert Congress from the work we need to accomplish this year. Investigations like this one have a way of spinning out of control. And before we know it, summer will be here and we'll still be focused on President Clinton's pardons. That, I think, would be a disservice to the American people.
It is legitimate to ask questions that are being asked today, but I hope most of my colleagues would agree with President Bush that at some point soon we need to move on.
If there are allegations of criminal wrongdoing, that is something for the proper authorities, not this committee, to look at. To be sure, the president may have unbounded power to grant a pardon, but that doesn't mean that those seeking pardons can do anything they want to get one.
In the end, I think history will judge some of the pardons we have seen in the last 30 years by many presidents quite poorly. But I hope that here in Congress we can start soon to focus on the future, and not let our quarrels with prior administrations mire us in the past.
SPECTER: Thank you, Senator Schumer.
SEN. MITCH MCCONNELL JR. (R), KENTUCKY: I commend the committee's efforts, and particularly those of Senator Specter, to try to determine the rationale behind what appears to be an unjustified exercise of the executive's pardon power.
While the president alone possesses the power to pardon, it's important to remember that he is not personally exempt from federal laws that prohibit the corrupt actions of all government officials.
If, for example, President Clinton issued a pardon to Marc Rich in exchange for donations to his presidential library, this would indeed be a violation of 18 U.S.C. Section 201(b). This statute provides in relevant part that any public official who accepts anything of value in return for the performance of any official act shall be fined or imprisoned for not more than 15 years or both and may be disciplined from holding any office of honor, trust or profit under the United States.
But while it may be advisable for us to explore the facts and circumstances that could constitute a violation of this statute, this is ultimately a matter for the U.S. Department of Justice and the United States attorneys, not the Congress. For it is the executive branch, not we, which must enforce existing law.
And let me be clear, what is at issue here is a potential violation of existing law. And what is needed, if anything, is the enforcement of that law, not the enactment of an additional law, and certainly not a change to our Constitution.
No one would dispute that if, in exchange for money, a prosecutor dropped charges against an individual who had been indicted, then the prosecutor would be guilty of violating existing federal law. No one would argue that we needed new laws in response to such a single corrupt act. Therefore, I urge the Congress to use caution when determining whether legislative action is needed in response to the actions of President Clinton. We should not overreact in response to the misdeeds and misbehavior of one man.
We have, in my opinion, unwisely traveled down that road before. After Watergate we passed an unprecedented restriction on the rights of political speech and association, in the name of campaign finance reform, most of which was struck down by the United States Supreme Court, as a violation of the First Amendment. And we, of course, continue that debate up to today and will resume it on the floor of the Senate next month.
Also, in the wake of Watergate, we enacted an independent counsel statute that in retrospect took us 20 years to get off the books. Fortunately, we let it expire in 1999, and I hope we've seen the end of that.
And we should be particularly careful about changing our nation's fundamental document. Our Constitution has been amended 27 times in 200 years, and we all recall that 10 of those were at one time.
When we have embarked on the extraordinary course of amending our Constitution, it has typically been done to address extraordinary problems that were not readily solvable through ordinary means, ensuring, for example, that former slaves enjoyed due process and equal protection of the law; guaranteeing that women as well as men are allowed to exercise the franchise; making sure that young Americans, who may be required to fight for their country, are able to have a say in its governance. I submit that the potential abuses of executive power that this hearing will explore, as troubling and as inexcusable as they may be, are not so widespread and so major as to warrant changing our Constitution.
In closing, let me again commend the committee and particularly you, Senator Specter, for these hearings. I think this is an important inquiry, and I'm glad that we are having it.
SPECTER: Thank you, Senator McConnell.
Mr. Adams, Mr. Holder, would you rise for the administration of the oath?
Do you solemnly swear, Mr. Roger Adams and Mr. Eric Holder, that the testimony you will give before this Senate Judiciary Committee will be the truth, the whole truth and nothing but the truth, so help you God.
WITNESSES: I do.
SESSIONS: Mr. Chairman, could I offer for the record a letter I received from Joe D. Hubbard, a district attorney in Alabama, a fine district attorney who has been given a lot of important cases over the years for the state, who tried the Chandler case that the ranking member referred to earlier. He opposed this pardon and I wanted to offer a letter for that. He personally participated as a cross- designated United States attorney -- assistant United States attorney and tried the case, and it involved the murder of an informant by a major drug-dealing individual, and he believes the commutation of that sentence was in error.
SPECTER: Without objection, it will be admitted.
We have three panels. We request that the witnesses limit their opening statements to seven minutes and the senators' rounds will be five minutes in duration on questioning, so we'll set the clock in that way.
Mr. Adams, we'll begin with you.
ROGER C. ADAMS, JUSTICE DEPARTMENT LAWYER: Good morning, Mr. Chairman.
I'm here today at the committee's request to provide information about how my office, the Office the Pardon Attorney, normally handles clemency petitions and to describe why my office was not able to follow our normal procedures in the case of President Clinton's grants of pardon to Marc Rich and Pincus Green the morning of January 20, 2001. Mr. Chairman, I have submitted a statement that I request be made part of the record and I will...
SPECTER: Without objection, it will be made a part of the record in full.
ADAMS: Thank you.
Mr. Chairman, executive clemency petitions most commonly request relief in the form of pardon or commutation of sentence. The Department of Justice processes requests for executive clemency in accordance with regulations promulgated by the president and set forth at 28 C.F.R. Sections 1.1 through 1.11. These regulations provide internal guidance for Department of Justice personnel who advise and assist the president in carrying out the pardon function, but they create no enforceable rights in persons applying for executive clemency and do not restrict in any way the plenary clemency authority granted to the president under Article II, Section 2 of the Constitution.
While the regulations thus govern the process for clemency requests submitted to the department, they do not govern requests submitted directly to the president. Under the provisions of 28 C.F.R. Section 1.2, a person does not become eligible to file a pardon request with the department until the expiration of a five-year waiting period that commences upon the date of the individual's release from confinement or his most recent conviction or if no condition of confinement was imposed as part of that sentence, the date of conviction. Moreover, the same regulation stipulates that no petition for pardon should be filed by an individual who is then on probation, parole or supervised release.
As the foregoing indicates, a person who has not yet been convicted or has not fully served the sentence for the federal crime for which pardon is sought is ineligible for pardon or to apply for a pardon under the regulations that guide the Department of Justice's processing a pardon request. However, these rules do not bind the president. The president retains the authority under the Constitution to consider a pardon request from an individual who is ineligible to apply under the regulations or who has not applied at all, and to grant clemency to such a person if he believes such action to be appropriate.
A pardon request is typically processed in the following manner: The pardon applicant files his clemency petition addressed to the president with the Office of the Pardon Attorney. He is free to utilize the services of an attorney or to act on his own behalf in seeking pardon. The standard form utilized for this process requests information about the offense, the petitioner's other criminal record, his employment and residence history since the conviction, and other biographical information and his reasons for seeking pardon. The application must be signed and notarized and the applicant must also submit three notarized affidavits from character references who know of his conviction and support his pardon request.
When my office receives a pardon petition, it is screened to ensure the applicant is in fact eligible to seek a pardon; in other words, that the crime for which pardon is sought is a federal offense and that the waiting period has been satisfied. If the petitioner is ineligible to apply for pardon under the regulations, he is so informed. If the application is incomplete, further information is sought from the petitioner.
As an initial investigative step in a pardon case, the Office of the Pardon Attorney contacts the United States probation officer for the federal district in which the petitioner was prosecuted to obtain copies of the presentence report and the judgment of conviction, as well as information regarding the petitioner's compliance with court supervision and to ascertain the probation officer's views on the merits of granting the pardon request.
If review of the pardon petition and the data obtained from the probation officer reveals information that clearly excludes the case from further favorable consideration, my office prepares a report to the president for the signature of the deputy attorney general recommending the pardon be denied. If this initial review indicates that the case may have some merit, it is referred to the FBI so that a background investigation can be conducted. The FBI report, when it is completed, is reviewed by my staff to ascertain whether favorable consideration of the case may be warranted.
If the investigation reveals derogatory information of the type that would render pardon inappropriate and warrant denial of the request, my office prepares a report to the president, again through the deputy attorney general recommending this result. On the other hand, if the FBI report suggested favorable treatment may be warranted, or in cases which are of particular importance, or which raises significant factual questions, the Office of the Pardon Attorney request input from the prosecuting authority, either U.S. attorney, division of the Justice Department, and in some cases an independent counsel. And we also request information from the sentencing judge.
If the individual case warrants, other government agencies, such as Internal Revenue Service and INS, may be contacted as well. In appropriate cases, where the offense involved a victim, the prosecuting authority is asked to notify the victim of the pendency of the clemency petition, and advise him that he may submit comments concerning the pardon request. Upon receipt of the responses to these inquiries, my office prepares a report and a proposed recommendation for action upon the case. The report is drafted for the signature of the deputy attorney general and is submitted for his review. If the deputy attorney general concurs with my office's assessment, he signs the recommendation and returns the report to my office for transmittal to the counsel to the president. If, on the other hand, the deputy attorney general disagrees with the disposition proposed by the pardon attorney, he may direct the pardon attorney to modify the department's recommendation. After the recommendation is signed by the deputy attorney general, the report is transmitted to the counsel to the president for the president's action whenever he deems it appropriate.
Now, when the president decides to grant clemency, whether in the form of pardon or commutation of sentences, the counsel to the president informs the Office of the Pardon Attorney to prepare the appropriate clemency warrant. Typically, if the president intends to pardon a number of applicants, a master warrant of pardon will be prepared for his signature. The signed master warrant bears the seal of the Department of Justice, lists the names of all of the individuals to whom the president grants pardon, and directs the pardon attorney to prepare and sign individual warrants of pardon reflecting the president's action to be delivered to each pardon recipient. The preparation of the individual warrants by the pardon attorney is therefore a ministerial act which simply sets forth the decision the president has already made.
The individual warrant likewise bears the seal of the Department of Justice and reflects that it has been prepared at the direction of the president. When the individual pardon warrant has been prepared, it is sent to the applicant or his attorney, if he is represented by counsel, along with an acknowledgement form that the pardon recipient completes and returns to the pardon attorney's office to reflect that he has received the warrant.
Mr. Chairman, I note that my time has expired. I would be glad to dispense with the rest of my reading. A summary is actually contained in my prepared statement. I would be glad to...
SPECTER: Well, we're interested in what you have to say, Mr. Adams, as to the procedures. So if you could summarize, we would appreciate it, but take some extra time.
ADAMS: Let me move ahead with respect to the pardon of Marc Rich and Pincus Green.
Mr. Chairman, none of the regular procedures that I've just described were followed. The first time that I learned the White House was considering these two persons for pardon was shortly after midnight on the morning of Saturday, January 20, 2001. At that time, I received a telephone call from the Office of the White House Counsel advising me that they were, at that time, faxing me a list of additional persons to whom the president was considering granting pardons.
When the facsimile arrived, among the several names listed were Pincus Green and Marc Rich. Since the fax included no other information about these persons, I telephone the White House Counsel's Office to advise that I would need additional identifying data in order to request that the FBI conduct criminal record checks on the named individuals.
I might note, Mr. Chairman, I had been contacting the FBI for the past several days with the names of persons for whom the White House wanted checks of criminal records and outstanding warrants.
I was told by the White House counsel staff the only two people on the list for whom I needed to obtain record checks were Marc Rich and Pincus Green, and that it was expected that there would be little information about the two men because, to quote the words of the White House Counsel's Office, "they had been living abroad for several years."
I obtained the dates of birth and Social Security numbers for Rich and Green from the White House Counsel's Office, and I then passed this information along to the FBI by telephone so that the record checks could be completed.
Shortly thereafter, the counsel's office faxed to my office a few pages that appeared to have come from the clemency petition that had been submitted to the White House on behalf of Mr. Rich and Mr. Green by Jack Quinn and some other attorneys.
The information contained in these documents revealed that the pardon requests sought clemency for pending charges that had been brought indictment in the Southern District of New York some 17 years earlier, and that Rich and Green had resided outside of the United States ever since and were considered to be fugitives. At that point, a member of my staff began to conduct a quick Internet search for information about the two men. While that search was ongoing, I received a facsimile transmission from the FBI of records which confirmed that Rich and Green were wanted fugitives whom law enforcements authorities were willing to extradite for a variety of felony charges, including mail and wire fraud, arms trading and tax evasion.
Because I was concerned that the FBI transmission would not be readable, because it was a second or third generation facsimile transmission, if it were itself faxed to the White House Counsel's Office, I wrote a quick summary of the information regarding the outstanding charges against Rich and Green and their fugitive status and faxed that to counsel's office shortly before 1 a.m. on January 20th.
Because of what we had learned about Rich and Green, I also immediately contacted Deputy Attorney General Eric Holder at home through the Justice Department command center to alert him that the president was considering granting pardons to the two men. Mr. Holder indicated to me at that time that he was aware of the pending clemency requests by Rich and Green.
After receiving my short summary of the FBI's information about Rich and Green, personnel from the White House Counsel's Office called to ask that I fax them a copy of the material that I received from the FBI itself. I did so shortly after 1 o'clock. And I also included the limited information about Rich and Green's fugitive status and the charges against them that my staff had been able to obtain at that point from the Internet.
The only other times the names of Marc Rich and Pincus Green had come to my attention was on the morning of January 19, 2001, when I first saw a copy of a letter dated January 10, 2001, that their attorney, Jack Quinn, had sent to Deputy Attorney General Holder seeking his support for pardons for the two men.
The Justice Department transmittal sheet attached to the letter indicated that on January 17, the Department's executive secretariat had assigned the Quinn letter to my office for response and had sent a copy to the deputy attorney general's office for information. My office actually received its copy on the afternoon of January 18, and on the morning of the 19th, I saw it in our mail.
Because neither Rich nor Green had filed a clemency application with my office, and because the White House Counsel's Office had never indicated to me at that point that pardons for these two persons were under consideration, I proceeded to draft a short response on the morning of the 19th -- and I decided to hold it until the following Monday -- advising Mr. Quinn that neither man had submitted a pardon petition to my office and if they wished to request pardons, the application forms were available from my office upon request.
What I've just described, Mr. Chairman is the totality of my involvement and the involvement of the office of the pardon attorney in the Rich and Green pardons. In my prepared statement, Mr. Chairman, I've described how my office prepared the individual warrants for Mr. Rich and Mr. Green, a subject which you alluded, and how we also prepared those in the other cases, but in the interest of time, I will not go over those now.
SPECTER: Thank you very much, Mr. Adams.
Mr. Holder, if you could direct at least part of your comments to the specific action you took after Mr. Adams called you at 1 a.m. on January 20, 2001, we would appreciate it.
ERIC HOLDER, FORMER DEPUTY ATTORNEY GENERAL: What I would ask, Mr. Chairman, is instead of making a statement, if I could have the statement that I made before the House committee -- I think this would be appropriate -- to have this made a part of the record here.
SPECTER: It will be made a part of the record, without objection.
HOLDER: What I'd like to do is really just touch on a couple of points, and then respond to any questions that anybody might have.
First, I think one thing ought to be made clear: The deputy attorney general and the pardon attorney of the Justice Department do not decide pardon requests. We make recommendations to the president, where the decision is ultimately made. There have been times when we have made, I have made, recommendations to the president in favor of a pardon request that was not granted. Conversely, there have been times when I've recommended against pardon requests and they have been granted. In that list of 140 or so that were granted in that last day of the Clinton administration, there are people on that list that we recommended, I recommended, against pardons being granted.
I also would like to place some context, if I can, and tell you a little bit about that last day, that is, the 19th. I was extremely busy that day and particularly that night. We are looking back now in the relative calm of this room, but on that day, the last day of the administration, I was engaged in personnel matters, death penalty issues among them, the Chandler pardon request. We were dealing with Federal Register matters.
And something that took up a lot of my time were specific security concerns we had about the inauguration the next day. We had specific information that gave us great concern about the safety or the potential safety problems that we were going to have with the incoming president. We were not concerned about the ride from the White House to the inauguration or the inauguration itself, but we were very concerned about the ride from the inaugural to the reviewing stands.
At 12:00 on that day, which would have been at the time of the inauguration, I was to become the acting attorney general. Attorney General Reno would have stopped her responsibilities at that point. And so I spent a lot of time that evening focusing on that issue and the other issues that I have talked about. As I've indicated in my prepared remarks, there are things I wish I could have done differently on that night, but I want people to try to understand that this was not the only thing on my plate on that evening, and it was not one of the chief things that I had on my plate that evening. In retrospect, what I think I could have done, what I should have done that evening, was to check with the person on my staff who was responsible for handling pardon matters to see where we stood on the Rich matter. I assume that what had happened, assume as I indicated in my remarks, that after the pardon request would have been filed with the White House that it would have been sent to the Justice Department for review. I also assume that staff contacts were going between my staff, perhaps the pardon attorney staff and people in the White House counsel's office. I did not think that from November 21, when, I guess, I first heard about the possibility of the pardon, until January 19 that I was the only person in the entire Justice Department who was aware of this matter. In fact, I found out later on that there were, in fact, conversations that occurred between my staff, the White House counsel and Mr. Adams about other matters, other New York- related pardon matters that I did not become aware of until after -- well, some time after the 20th. I assume that those kinds of contacts, those kinds of discussions, were ongoing.
With regard to the question that you asked, Senator Specter, Mr. Adams did call me about 1:00 or so and to tell me about what had transpired in this interaction with the White House counsel's office. I had known about that, I believe, from about 11:00 or 12:00. Again, as is indicated in my prepared remarks, the person on my staff indicated to me that appearing on a list -- or there had been some indication to her that the Green and Rich names appeared on a list or were -- or it had been indicated to her that the pardon applications for them were going to be granted or pardons were going to be granted for them.
By the time that I got that information, I thought that a decision had been made, that the president had rendered a decision, had made up his mind, had considered all the things that he was going to consider. And so I took no action after that point.
And beyond that, I would simply respond to any questions that anybody might have.
SPECTER: Thank you, Mr. Holder.
Mr. Adams, you testified that when you talked to White House counsel about these two men you were told that they were, quote, "living abroad," close quote.
ADAMS: That's correct, Senator.
SPECTER: That's all? Nothing about their being fugitives?
ADAMS: The word fugitive did not come to my mind right then. The fact that the phrase "living abroad" caught my attention and I decided that, even though they hadn't asked for much, that I really wanted to do at least the limited FBI record check that we could do, which was for outstanding warrants and criminal history.
SPECTER: But when you were told they were living abroad, you were not told that they were under indictment?
ADAMS: No, sir, I was not.
SPECTER: Or that they were fugitives?
ADAMS: I was not told they were fugitives. I learned that from the FBI. I was told that they were under indictment when the White House counsel's office -- I think as I testified -- a few minutes after our initial conversation faxed me a portion of the request for pardon that Mr. Quinn had filed for these two men with the White House, and that indicated that they were under indictment -- a particular indictment in the Southern District of New York, dating from 1983.
SPECTER: Mr. Adams, you testified that these warrants were to be delivered to the individuals who were to be pardoned.
ADAMS: That's correct.
SPECTER: Was the document on executive grant of clemency ever delivered to Mr. Marc Rich?
ADAMS: The individual pardon warrant for both Mr. Rich and Mr. Green, which I had been directed to prepare by President Clinton's signing of the master warrant, it was delivered -- at least was put in the mail, I think it's been delivered now -- to their counsel, Mr. Quinn. It's standard procedure when a clemency applicant is represented by counsel, and the request is approved, we deliver the documents to the person's counsel.
SPECTER: Was there anything that you knew factually from the president about Mr. Marc Rich, besides the fact that his name appeared on this master list?
ADAMS: Anything I knew from the president about Marc Rich?
SPECTER: Yes, sir.
ADAMS: No, Senator. What I testified to and what's in my statement is the entire scope of my dealings with the White House on it, the dealings were through counsel -- went through the White House counsel.
SPECTER: And, Mr. Adams, when was this executive grant of clemency, when was it prepared?
ADAMS: Probably prepared some day last week. It was prepared after January 20.
SPECTER: Well, the document recites on its face, "In accordance with these instructions and the authority I have, sign my name and cause the seal of the Department of Justice to be affixed hereto and affirm that the action is the act of the president being performed at his direction, done at the city of Washington, District of Columbia, on January 20, 2001, by direction of the president, Roger C. Adams, pardon attorney." And you're saying that this recitation is inaccurate.
ADAMS: It's inaccurate in the sense that there was no physical way we could sign -- or I could prepare individual warrants and sign them all on January 20. It's been customary for many years that the individual warrants reflect the date of the grant as set out in the master pardon warrant, but it's understood that we are not physically able to prepare or deliver or...
SPECTER: Well, Mr. Adams, I can certainly understand why you couldn't get them all completed. But I just want to be emphatic for the record or clear for the record that the recitation that it was done on January 20, 2001, is not accurate.
ADAMS: It's true I did not sign it on January 20. That's true, but it certainly reflected the action of the president -- then- President Clinton -- taken on January 20.
SPECTER: Well, the action of President Clinton was taken on the master executive grant. There's another document, which I know you're aware of, Mr. Adams, which has the insignia of the Department of Justice, pardon attorney, stamped January 20, 2001, memorandum to director of Office of Public Affairs from Roger C. Adams, RCA, pardon attorney, subject: Marc Rich. "On the above date, President Clinton granted Mr. Rich a full and unconditioned pardon after completion of sentence." And it purports to bear your initials. Are those, in fact, your initials?
ADAMS: Yes, they are, Senator.
SPECTER: This may obviously be simply a mistake or it may reflect that it is customary for the president to specify pardons, as many of these documents did -- this is one of many which contained a recitation, conditioned on, or the language is, "a full and unconditioned pardon on completion of sentence." What are the facts behind this memorandum, Mr. Adams?
KAGAN: Questions now from Senator Arlen Specter of the Senate Judiciary Committee, looking at the situation with the last-minute pardon of financier Marc Rich. More on that just ahead.
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