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FindLaw's John Dean points to complexities of Rich case



February 21, 2001
Web posted at: 5:30 p.m. EST (2230 GMT)

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FindLaw columnist John Dean was White House counsel during the Nixon administration and has written extensively about his involvement in the Watergate scandal, notably in his book, "Blind Ambition." Now an investment banker in California, Dean joined Law Chat from Los Angeles by telephone at noon, Wednesday, January 21, 2001, to discuss President Bill Clinton's controversial last-minute pardon of expatriate financier Marc Rich. CNN.com provided a typist. Law Chat is produced with FindLaw. The following is an edited transcript of the chat.

CNN Moderator: Welcome to CNN.com, John Dean.

John Dean: It's a pleasure to join you today.

CNN Moderator: There has been debate between former President Clinton's critics and supporters as to whether his pardoning of Marc Rich is really any different from President Bush's pardoning of Caspar Weinberger for his alleged role in the Iran-contra scandal while serving as President Reagan's defense secretary. What are your thoughts on this?

John Dean: There are certainly many parallels between the two last-minute pardons. From a procedural standpoint, there is little difference. From a substantive standpoint, there are some differences in the fact that Mr. Weinberger's position was that he was just ready to go to trial, while Mr. Rich had been indicted and failed to return to the country. But probably there are more similarities than differences.

It is obvious why the comparison of the two pardons is made. It is difficult to criticize Clinton while also not criticizing former President Bush at the same time, by using the Weinberger example.

Question from Chat Room: If I heard you correctly yesterday, you said that the Senate committee conducting hearings has no legal authority regarding presidential pardons. If that is so, why are we wasting taxpayers' time and money?

John Dean: I believe what I said is that they had no oversight jurisdiction over the granting of pardons. The Congress can always concoct one reason or another to undertake an investigation. They often investigate matters where they have little real business doing so because of the politics connected with the investigation.

It's my feeling that they have no real business investigating a decision to grant a pardon, because under our Constitution they have no authority to review or to second-judge a president's decision to grant a pardon. If they are looking for criminal misbehavior, the proper place to make such an inquiry is a grand jury room and not a congressional hearing room.

"However, I would certainly advise him against testifying before the Congress. While President Ford appeared before the Congress to explain his granting of a pardon to Richard Nixon, those who remember that appearance will recall that he really did not satisfy the skeptics or critics at the time."
— John Dean

Whether or not this is a waste of taxpayer money is in the eyes of the beholder. I think you can tell how I might perceive these investigations.

CNN Moderator: Since Marc Rich has been pardoned, can Congress compel him to testify at a committee hearing to get his side of the story without his taking the Fifth Amendment?

John Dean: To force testimony from Mr. Rich the Congress will first have to get a subpoena served on him within a territory of the United States. They cannot serve him as a foreign national. Unless he agrees to accept the subpoena or travels to the U.S. where he can be served, I don't know how they are going to successfully serve him.

But let's assume they can accomplish service. If they bring him before the committee, they can only force him to testify and not invoke his Fifth Amendment rights by granting him immunity. There is a rather complex statutory scheme that requires the Congress to notify the Department of Justice and then get a court order before granting a witness immunity. I doubt if the Department of Justice would grant Congress the opportunity -- or give it permission -- to grant Rich immunity, and would most likely fight an effort to immunize him.

Finally, it should be understood that the type of immunity the Congress can grant is fairly narrow. It is called "use immunity." It only extends to the matters about which the witness testifies. But, obviously the Congress is interested in the matters about which the Department of Justice had earlier sought to indict him.

In summary, it's very unlikely that Rich will come before a congressional committee.

Question from Chat Room: Mr. Dean, how is the alleged abuse of the RICO (Racketeer Influenced and Corrupt Organizations) law relevant to why President Clinton decided to pardon Mr. Rich?

John Dean: The RICO statute, which was designed to fight the mob with the most draconian tools of the law, was aggressively used in this investigation against Marc Rich and his partner, and used in a manner that is no longer deemed permissible for such investigations. What was done was to make a civil proceeding into a criminal racketeering proceeding. It was considered by all who studied it -- excepting the government -- to be rather heavy-handed.

The lawyers representing Mr. Rich have argued for years that this heavy-handed or overzealous prosecution was uncalled for by the government and therefore a justification for either a reconsideration by the government of their approach to this case or a pardon. When the government refused to reconsider its approach, the last group of lawyers sought the pardon. While we don't know exactly what Mr. Clinton had in mind, his New York Times editorial suggests that he had an empathy for Mr. Rich because of the overzealous techniques that the prosecutors used in this case.

CNN Moderator: Former President Clinton has received much criticism for writing his op-ed piece and for contacting MSNBC personality Geraldo Rivera. As a former White House counsel, would you have advised against such moves?

John Dean: I think the former president should have available to him any and all forums anyone would have, and has the right to use them as he sees fit. My counsel would have been for the president, who is so very skilled verbally, to hold a press conference of some kind to address questions. The tightly argued op-ed piece struck many people as overly legalistic and therefore less than satisfying in hearing the president's explanation.

I would not be surprised if the president does find an appropriate forum to further discuss this matter before it is all resolved. I would anticipate he would do that through some sort of interview or question-and-answer session.

However, I would certainly advise him against testifying before the Congress. While President Ford appeared before the Congress to explain his granting of a pardon to Richard Nixon, those who remember that appearance will recall that he really did not satisfy the skeptics or critics at the time. It was only with the distance of several years that people came to appreciate that Ford's pardon of Nixon had resolved a true national nightmare. Before they realized that, however, they had voted Ford out of office. So there is no fast way for Mr. Clinton to answer his critics on this matter.

Question from Chat Room: Do you feel Congress would tear Mr. Clinton apart?

John Dean: I'm not sure they could "tear him apart" but, as I just explained, it is a no-win forum for Mr. Clinton. First of all, he will be confronting his critics in their own territory, where they will be most comfortable and appear most legitimate. He will be the stranger in their land. He will not be able to overwhelm them in that forum. Thus he will only expose himself to further public relations and political problems by making such an appearance.

To return to the example of Ford when he appeared before the House Judiciary Committee to respond to questions about the Nixon pardon, he was really returning to his old neighborhood as a long-time and highly respected member of Congress. He had also had a similar public exchange with the Congress when he was nominated to become vice president because he was a non-elected, appointed vice president.

Another example is that of Richard Nixon. Following Watergate, many in Congress demanded that he testify. He refused to appear but did agree to testify by deposition with a very narrowly agreed upon area of questioning when the Senate was investigating abuses of the intelligence community. But Nixon was talking not about his particular decisions as president; rather he addressed practices and procedures.

So I would say that while Clinton would not be beat up by the Congress, he would violate the separation of powers principle that keeps our respective branches in their place, respecting one another's powers.

CNN Moderator: What do you think of efforts to pass a constitutional amendment that would give Congress the ability to revoke a presidential pardon or to mandate Department of Justice review of all presidential pardon requests?

John Dean: I think we must be very careful when we start tinkering with the Constitution. History has proved that it is very difficult to amend the Constitution to meet a few critics' complaints at any given time.

With regard to the sharing of the pardon power, it is highly unlikely that it will ever be amended as suggested because such schemes of sharing the power were considered by the founders and rejected. These debates have already been resolved and the pardon power has been as it is today for over 200 years. The likelihood that the Marc Rich pardon will change it is nil to none.

CNN Moderator: Thank you for joining us today, John Dean.

John Dean: It was delightful to be with you, as always.



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RELATED STORIES:
Judiciary panel to investigate presidential pardon power
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RELATED SITES:
Edward Lazarus: FindLaw Forum: Pardon me, but Clinton's defense of pardons doesn't wash

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