National Journal, February 24, 2001
Even by Washington's standards, the piling on that followed President Clinton's midnight pardon of Marc Rich has been impressive. Well, the pardon was not pretty, but the scandal it triggered exemplifies Rauch's Law: In postmodern, hyperlegalistic Washington, an ethical infraction is never as destructive as the uproars and investigations that follow. In the Rich ruckus, what is taking place is an attack not just on a pardon, but on pardons.
In 1983, Rich, an international commodities trader, was indicted on multiple counts after he was accused of trading oil in violation of U.S. energy laws and of a trade embargo with Iran. He dashed to Switzerland and stayed there, beyond the reach of U.S. law. On Jan. 20, only hours before leaving office, Clinton pardoned him. It soon emerged that Rich's legal team, notably former White House counsel Jack Quinn, had plied its Clinton connections aggressively. It also emerged that Rich's ex-wife, Denise Rich, had donated (according to The Washington Post) "more than $1 million to the Democratic Party and its candidates, $450,000 to Clinton's library fund, $100,000 to a fund to help Hillary Clinton's Senate campaign, $10,000 to the President's defense fund, and $7,375 worth of furniture to the Clintons."
The indictment of the Rich pardon centers on four complaints: that Rich was a fugitive, that he now has eluded justice, that Clinton and Rich's legal team circumvented the Justice Department's regular channels, and that Denise Rich's gifts either were de facto bribery or gave the appearance of same. Consider each count.
* Fugitive status. Pardons for fugitives are rare, to be sure, but hardly unheard of. Both Presidents Wilson and Carter pardoned thousands of fugitive draft-dodgers. Indeed, pardoning a fugitive makes sense if the charges against him are misguided or unfair, or if the whole point is to cut short a legal proceeding that the President judges harmful to justice or to the national interest.
* Evasion of justice. Rich now avoids criminal charges, which were brought against him under the racketeering laws (known as RICO). His attorneys' central contention, however, was that prosecutors had abused RICO by stretching it to cover offenses that are normally handled through civil proceedings, and that were in fact handled civilly for the other parties to the deals that got Rich indicted. In granting the pardon, Clinton specifically required Rich to waive any procedural defenses against civil action (such as those pertaining to statutes of limitations). So the government is now free to sue Rich all the way to Kingdom Come–just not to put him in prison. Since it is no secret that federal prosecutors–including Clinton's own Justice Department, in its lawsuit against Big Tobacco–have sometimes stretched RICO laws beyond all recognition, Rich's claim is not implausible on its face; and if the claim is fair, then Clinton's solution seems far from unreasonable.
* Improper channels. Most pardons are vetted exhaustively by the Justice Department. This one wasn't, apart from a last-minute glance. Rich's attorneys took their pardon application straight to the White House–again, a procedure that is uncommon but not unheard of–and Clinton acted with little input from Justice. How bad is this? Not very. If you think that all pardons should be approved by the Justice Department, then you misunderstand what pardons are for, a point I'll come back to in a minute. If you think Clinton should at least have run the traps before deciding, that seems a fairly finicky objection, because Justice would have rejected the pardon peremptorily. ("Officials," explains The New York Times, "would not consider pardon petitions from ex-offenders until at least five years after serving their sentence.") Running the traps would merely have told Clinton what he already knew, which was that Rich's case was exceptional.
* The money. The bribery theory seems far-fetched, if only because it is so entirely unnecessary to explain what happened. Did Denise Rich donate in exchange for a pardon–a federal crime, as she and Clinton would have known? Or did she get access to Clinton in exchange for her generosity? The latter, almost certainly. That is sleazy, but it is also routine in Washington, as well as being legal and inevitable. If you are shocked to learn that million-dollar donors get special attention from politicians, then I have some shares in the Grand Canyon to sell you. This is not to bless the money game, or to deny that Clinton was insensitive to appearances. After all, this is Mr. Lincoln Bedroom, the man who–oh, never mind. On the other hand, it would be perverse to demand that he or any President consider pardons only for people who were not supporters and never gave money, and inhuman to expect him to not be influenced by friendship.
Add up all four counts and you have a pardon that was tacky, unconventional, and possibly ill-judged (though possibly not), but not one that was shocking, corrupt, or criminal. No doubt about it, the pardon was unlovely. But bear in mind that the stakes were small. Almost by definition, midnight presidential pardons of well-connected tycoons are exceptional; I doubt that hundreds of unscrupulous businessmen will now feel free to break the law. In the onslaught against the Rich pardon, unfortunately, the stakes are much higher.
The power to pardon is one of the most venerable institutions of justice, traceable to at least the seventh century. Underlying it is a profoundly important ethical insight: At the end of the day, justice must be acceptable and accountable not just to a system, but to an actual human being, a living conscience. Bureaucratic buck-passing and rule-worshipping can lead to horrendous mistakes and excesses, for which no one accepts responsibility. During the Constitutional Convention, the Framers defeated a motion that would have spread (and thus blurred) accountability by giving the Senate a say over pardons. Alexander Hamilton later wrote that "the sense of responsibility is always strongest in proportion as it is undivided"; James Madison, that "the reflection that the fate of a fellow creature depended on [the President's] sole fiat, would naturally inspire scrupulousness and caution." In other words, the pardon's very essence is to create a check on bureaucratic law.
If Rich's attorneys were right to claim that his case was an example of mechanistic injustice and prosecutorial overkill, then this is just the sort of case that the pardon power was designed for. In such a case, overruling or circumventing the Justice Department is exactly the point. Even if Rich's legal team is wrong, the nonbureaucratic channel to the President needs to stay open and unhindered for others whose claims are stronger. "The benign prerogative of pardoning," said Hamilton, "should be as little as possible fettered or embarrassed."
In short, people are upset not because the pardon was misused in Rich's case, but because it was used as intended. Criticism is certainly called for; the Founders counted on "damnation of fame" as the best check on presidential abuses. But the Rich reaction has gone beyond criticism to something quite different: formal investigation.
On Feb. 13, the House Government Reform Committee, reported The Times, "issued subpoenas to Mr. Clinton's Presidential Library Foundation in Little Rock, Ark., the Democratic National Committee, and two banks where … Denise Rich held accounts. The panel also requested White House logs showing visits by people lobbying for the pardon as well as e-mail or telephone messages regarding Mr. Rich." On Feb. 14, Mary Jo White, the U.S. attorney in New York and the head of the office that originally indicted Rich, began her own criminal inquiry, complete with grand jury subpoenas for bank records and the like. She was reported to be "livid" about Rich's pardon.
Although there may be a legal case for these investigations, that does not make them wise. The Constitution is designed to let Presidents grant controversial pardons no matter what grandstanding Congressmen or livid prosecutors may think. One way to subvert this design is for grandstanding Congressmen and livid prosecutors to pummel pardon-seekers and pardon-reviewers with subpoenas, hearings, grand juries, legal fees, and possible exposure to subsequent perjury charges. Pardons are, if anything, already too rare. The foreseeable–and possibly intended–result of the Rich ruckus will be to make them even rarer, particularly in the face of political controversy or bureaucratic hostility, when pardons are often most needed.
"I think it's time to move on," President Bush said, when asked about the Rich uproar. His position was sound, indeed wise, but he seemed helpless to defend it. In the Rich case, no one wants to tell the indignant politicians and prosecutors and editorialists what they most need to hear: Get over it.