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Burden of Proof

Should Bill Clinton Be Criminally Investigated for Marc Rich Pardon?

Aired February 16, 2001 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, we turn our attention to the pardons once again, where we'll be discussing whether or not the pardon for Marc Rich was an excessive act by the president or something he should be criminally investigated for. Stay with us.


RANDY MASTRO, ASSISTANT U.S. ATTORNEY: It's always difficult to prove, in a bribery investigation, a quid pro quo relationship.

JONATHAN POLKES, FEDERAL PROSECUTOR: They're going to have to prove under the federal bribery statutes a direct link between the offer of money and the grant of the pardon.

ARI FLEISCHER, WHITE HOUSE SPOKESMAN: I do not think anybody believes the president of the United States should be the one to tell the Department of Justice how to conduct its investigations.


COSSACK: We're now going to go to a press conference being held by Timothy McVeigh's attorney to explain Timothy McVeigh's action. We go there now.



A federal judge in Atlanta has ruled that a $50 million lawsuit against John and Patsy Ramsey can proceed. The suit was filed by a former Colorado reporter who was identified as a possible suspect in a book authored by the Ramseys about the death of their daughter, JonBenet.



COSSACK: All right, welcome back to BURDEN OF PROOF.

Former president Bill Clinton is reportedly bewildered by the controversy surrounding his pardon of Marc Rich. Now the same U.S. attorney's office which indicted Rich 18 years ago has launched an investigation with the help of the FBI into the presidential action. Federal investigators are probing potential violations of campaign finance laws, focusing on Rich's citizenship status and whether any money for the DNC or the Clinton Library Foundation came from his accounts. The contributions came from his ex-wife, Denise, and she has said she'll plead the 5th Amendment if she's called to testify before Congress.

So joining us today here in Washington to discuss al of this and more are Stan Brand, former general counsel to the House of Representatives, constitutional law professor Peter Rubin and Republican congressman Bob Barr of Georgia, a member of the Committee on Government Reform.

And in the back, Tara Lawlor (ph), Dennis Willard (ph) and Jada Thomas (ph).

Congressman Barr, you're a former prosecutor. Let's talk about prosecuting this case, or just even the investigation of this case. It's -- as you would, I'm sure, admit, it's a very difficult case to prosecute and perhaps even to investigate. You have to show the intent. You have to show the quid pro quo. How do you go about doing this?

REP. BOB BARR (R), GEORGIA: Well, first of all, you -- you take some rudimentary steps of getting the information, the financial records, the transmittal letters, the accounts, and so forth. That -- that's pretty routine. It may not always be easy to get, but that's pretty routine and straightforward. You look for moneys coming in at certain dates. You look for where they came from.

Mr. Rich, like Mr. Clinton, is a very, very bright man. It's unlikely that he would just write out a check to Denise Rich for a campaign contribution. This -- these contributions, if they came from overseas, if they came from Mr. Marc Rich, probably went through several different steps along the way. What the investigators will have to do, under Mary Jo White's guidance, is simply go back, start unraveling that money trail.

Once you establish that, then you can establish the intent, more often than not, by turning witnesses or you certainly have an opportunity to draw reasonable inferences from circumstantial evidence.

COSSACK: All right, Stan, is it -- it's just not enough, though, to find out what -- what Rich's intent was. I mean, he may be sitting there, "Give that money, and I hope that this money persuades the president, when the time comes, to give me that pardon," but that's not enough, is it.

STAN BRAND, FORMER GENERAL COUNSEL, HOUSE OF REPRESENTATIVES: Yeah, well, let's get real about this. The fact that they have a financial relationship and money goes from account A to account B does not establish a conduit. The amounts have to match up. The dates have to match up. And the intent to provide that money in connection with or for a campaign contribution has to be proven beyond a reasonable doubt. These conduit case are difficult. I had one last year in the D.C. court, 42 counts, acquitted because the jury didn't believe that that's what happened. You must show by -- beyond a reasonable doubt that the money in the amounts given was intended to be given for campaign contributions. And I would submit, without knowing what their financial relationship is, that's very hard to do.

COSSACK: Well, let's -- let me play devil's advocate just for a second. We know there was a great deal of money that was given by Denise Rich to both the presidential foundation, his library, as well as to the Democratic National Committee. We know that they are divorced, and we know -- we can make a general assumption that usually ex-wives are not in the business of helping out former husbands. What role does that play?

BRAND: I mean, we also know, Roger, that every year hundreds of millions of dollars of contributions are given to members of Congress by industry that has proposals pending. That doesn't mean that they were all bribed or given contributions in the name of another.

COSSACK: That's a good point. And I want to go -- because I wanted to get to that, Congressman Barr. That whole notion of what we -- in Washington, this word of "lobbying," that -- that elected members of Congress receive a certain amount of influence or try to -- people try and influence by either gifts, perhaps, or a limited amount of contributions, you know, within the regulations. But that's not necessarily given with just the idea that, "Here, let me help you out, Congressman." I mean, this is a battle I'm sure you have to fight.

BARR: Well, it is, but in the context, Roger, of looking at this pardon, it's a red herring. Campaign contributions to members of Congress has nothing to do with whether or not there were funds that came either from Marc Rich directly or from other overseas sources through Denise Rich or in some way through maybe Beth Dorowitz, the lady at the -- the fund-raiser at the DNC...

COSSACK: Dozoretz.

BARR: ... or some -- Dozoretz...


BARR: ... or some other individuals, either as a quid pro quo for the granting of the pardon or to go to the DNC or the president's library or the foundation or whatnot. Yes, it may be difficult, ultimately, to establish the evidence necessary to show intent and linkage. But I think this case is important enough that we have to try and unravel that by taking the initial steps that Mary Jo White, as the prosecutor in this case, wants to take, and in our oversight capacity in Congress, we have an obligation to look at also.

Ultimately, if Justice makes a decision not to prosecute or they don't believe they can sustain the burden, then that's a decision they have to make. But we shouldn't step back and say, "Oh, because it's a difficult case, we ought not to even try."

COSSACK: Peter, let's talk about the -- what the Constitution gives the president and what the president can do and cannot even be asked about. Tell us about this pardon and clemency.

PETER RUBIN, CONSTITUTIONAL LAW PROFESSOR: Well, Article 2 of the Constitution gives the president absolute and unreviewable power to grant pardons, and that has within it the lesser power to grant clemency and amnesty. This power is unrestrained, and to some extent, there's a question involved in the -- at least in the congressional inquiry into this -- this pardon about separation of powers because this is an unreviewable power that is granted the executive branch.

The executive branch has set up procedures in the Justice Department that are ordinarily used for reviewing pardons, and we've heard some talk about that in the hearings, although the regulations surrounding those procedures specify that they are advisory only and that it's not mandatory that the president utilize those procedures. And high-profile pardons, particularly at the end of presidential terms, routinely are granted without going through those procedures -- for example, the pardons of Caspar Weinberger and the others at the end of the...

COSSACK: Right. But...

RUBIN: ... Bush administration.

COSSACK: But I would suggest that -- that the investigation here isn't into the notion that the president exceeded his power by granting these pardons. I don't think anybody argues the fact that he couldn't do that. I think the investigation here is -- and there certainly, as far as I'm concerned -- I want to make it very clear, there's no evidence yet and maybe never will be. But is the question of was there something improper -- was there an improper relationship between the president of the United States and a donator? And that is something that wouldn't violate the separation of powers.

RUBIN: No, I agree. And I agree that a criminal inquiry into an allegation of bribery is perfectly appropriate, even where the power of the government official is an absolute power. I think we have to be careful here, though, because I've seen no credible evidence, no evidence at all, of a quid pro quo, of someone saying to the president, "If you grant this pardon, we will donate this money." And I think it's extraordinarily unlikely that we're going to see evidence like that.

In terms of donations from overseas, Marc Rich and his ex-wife have children together. Indeed, one of their daughters died of cancer since Mr. Rich fled the country or left the country before he was indicted and went to Switzerland. And it wouldn't surprise me if money went back and forth between their accounts.

COSSACK: Congressman, this question of -- as Peter points out -- he says, "Look, there's no evidence yet." I mean, you're not in any way saying that, as of this stage of the investigation -- you're not prepared to make an allegation, are you?

BARR: Nor am I prepared to say that there is not -- that there will be no evidence of it. The fact of the matter is that even the president's lawyer, Jack Quinn, testified that he was surprised that this pardon was granted. The prosecutors were flabbergasted. There's no reasonable explanation, Roger, for why this pardon was granted. And therefore, in the absence of some reasonable explanation, it is a legitimate inquiry to try and find out why the pardon was granted. It could very well be that there was something improper done. And in the absence of any reasonable explanation otherwise, it's -- it's legitimate for Congress and the prosecutors to look into that.

BRAND: It's not legitimate for Congress because Congress can only investigate subjects upon which legislation can be had. Everyone concedes that Congress can't legislate about the president's pardon power. And they are not law enforcement. They are not supposed to be...

COSSACK: But they have oversight responsibility.

BRAND: Oversight over the Department of Justice, not over the president's unreviewable constitutional power.

BARR: Over the pardons attorney we do, Roger. And also...

BRAND: Not over the presidents of the United States.

BARR: ... there may -- there may very well be legislation introduced that -- that goes to the president's pardon authority. There are some moves, such as Arlen Specter's, to get into that. So this -- this is very legitimate...


BRAND: Not without a constitutional amendment.

COSSACK: Let's talk about that because I'm not so sure -- and I -- and I -- I think what Stan's saying is correct. I mean, I'm not so sure that legislation could be affected on the pardons.

But let's talk about that when we come back.

You know, the president, on his last day, granted 140 pardons, on his last day in the Oval Office, and you know, not all of them were so controversial. A lot of them were for clemency and were quite merciful. We'll talk about those, too, when we come back. Stay with us.


Authorities in California have reopened an investigation into a deadly 1975 bank robbery. What potential witness received a pardon from former president Clinton?

Answer coming up.



(BEGIN Q&A) Authorities in California have reopened an investigation into a deadly 1975 bank robbery. What potential witness received a pardon from former president Clinton?

One-time hostage and Symbionese Liberation Army member Patty Hearst.


COSSACK: All right, we're back, and we're talking about the pardon of Marc Rich, and we had just gotten to a point where we were discussing perhaps some legislation that would affect the president's power to grant these pardons.

Let's go to our constitutional lawyer and find out, can Congress pass legislation? I thought we'd decided that this was given to the president as something that the president alone can do.

RUBIN: All that they can do is pass a constitutional amendment, which, of course, requires two thirds of each house of Congress and then ratification by three quarters of the states through their legislatures. I think there's a real risk here, though, of constitutional amendment by anecdote. The presidential pardon power has been in place since the founding and to take one example of a questionable pardon -- Congressman Barr says it's completely indefensible, and I think we'll have to wait and see.

The president -- the former president, Clinton, has begun to make a case. All he's said is -- has made one statement that suggests that similarly situated people weren't criminally prosecuted for this same kind of conduct, but we'll have to see how that develops. But to use one case and to amend this constitutional power, which is put in place so that presidents can temper justice with mercy...


RUBIN: ... and can deal with sentences that are harsh or inappropriate I think would be very problematic.

COSSACK: Congressman Barr, you're a pragmatist. I mean, in the sense of wanting to change or trying to amend the Constitution, which you know is a tough thing to do anyway -- and probably the president from your party, who's in office right now, wouldn't be too happy with that -- having his power tempered anyway.

BARR: Well, I -- I don't -- I don't support any constitutional amendments to change the pardons power. I think bad cases make bad law. And I don't think that we ought to rush out and do that. My only point is I do think it is a proper exercise of legislative -- the legislative branch to review these matters. I think there is no reason at all why we shouldn't be involved in looking at this. But I don't favor a constitutional amendment.

COSSACK: All right, now, you know, Stan, one of the things the president did his last day, besides all of these controversial pardons, was to pardon people who perhaps didn't even ask for it, didn't have attorneys and just suddenly received pardons, some of whom -- many of whom people would not have any arguments with what -- whatsoever and, in fact, granted clemency to many people who were serving long sentences in prison.

About two thirds of those acts of clemency came for people who were serving sentences under mandatory minimum sentences or -- or under the sentencing guidelines for drug cases. The argument is that these sentences are excessive -- 30, 40, 50 years, oftentimes. Is this a reflection or the first firing of the volley against these mandatory sentences?

BRAND: Well, there's been an undercurrent and a debate in criminal justice circles about the sagacity of the sentencing guidelines as a matter of policy. They tend to turn federal judges into automatons who mathematically calculate a sentence and don't take into account any of the traditional factors of sentencing. I think people are beginning to wake up to the fact that this is not the way to go, and these commutations are evidence of that.

COSSACK: You know, Representative Barr, these mandatory minimums for drug cases have come under a lot of criticism. We know the policy, when they were put into effect almost 20 years ago -- perhaps they're not what they turned out to be. Your feelings on these?

BARR: I -- I think it's entirely appropriate, Roger, to review these. I have no problem with reasonable minimum mandatory sentences in certain types of cases, but in order for the public to have confidence and for our system of criminal justice to have the credibility that it needs to function, people have to understand and be comfortable that the sentences that are meted out, whether it's through a minimum mandatory or a judge sentence, are reasonable. And if, in fact, they aren't, then we ought to go back and...

COSSACK: See, the argument is...

BARR: ... look at them.

COSSACK: ... is what happens is, is that somebody comes in who's a big-time player, makes a deal with the government and gets off and gets out from under these mandatory minimums, and somebody who doesn't have that information to sell ends up doing the mandatory minimum.

BARR: And -- and that is...

COSSACK: And that -- that seems to be a pretty strong argument.

BARR: That -- that is a legitimate thing that we ought to look into. I think we ought to. If -- if they're being applied inappropriately or if the result is inappropriate and your more culpable, more serious offenses are getting the lower sentence, then something's wrong in the sentencing system, and we ought to adjust it.

COSSACK: Stan, in terms of these mandatory minimums, have they had a great effect in terms of reducing the problems, for example, in the war on drugs? Have they had the effect that they're supposed to have had? BRAND: Well, I think what they do is they give the prosecutors, in a sense, an interrorum (ph) weapon, that if they charge it and you -- and you're force to plead or convicted, then you're facing this huge, huge sentence. It's been another tool that the prosecutor has to extract pleas, as well as to get convictions and sentences.

COSSACK: Peter, one final question about the pardoning power of the president. You said it's -- the only way we could change it would be through a constitutional amendment. But could -- could, in some ways, Congress pass laws that say "This is the process that has to be in place before the president can look at an application for a pardon"?

RUBIN: No. I think that they don't have that power. I think that the absolute grant of power to the president can't be restricted in that way by -- by certainly action. And I think that's why the regulations that the Department of Justice has now for how their pardon attorney's office operates specify that it's advisory only and that if the president wants to grant a pardon or clemency without going through that process, he retains that power.

COSSACK: That's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE": It's free-for-all Friday. What's making headlines in your community? Send your e-mails to Bill Hemmer and tune in at 3:00 PM Eastern time.

And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.



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