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Burden of Proof

Clinton Grants 140 Pardons, Commutes 36 Sentences Before Leaving Office

Aired January 25, 2001 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

WILLIAM J. CLINTON, FORMER PRESIDENT OF THE UNITED STATES: The word "Pardon" is somehow almost a misnomer. You're not saying these people didn't commit the defense, you're saying they paid, they've paid in full.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Last Saturday in his waning moment in the Oval Office, former President Bill Clinton pardoned 140 people and commuted 36 other sentences. Among them, a wealthy financier whose ex-wife has given more than $1 million to the Democratic Party since the Clinton administration took over the White House.

(BEGIN VIDEO CLIP)

SEN. TOM DASCHLE (D-SD), MINORITY LEADER: I disagree with the pardon of Mr. Rich. I think it was inappropriate. But I don't know all the facts and I can't pass final judgment on it.

DICK THORNBURGH, FORMER ATTORNEY GENERAL: My sense is that the president's exit from office was a reminder of how fast and loose they've played with the administration of justice throughout their entire administration.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Former President Bill Clinton's final 24 hours in the White House marked not only the end of an administration, but several closing milestones in legal history. Clinton used his constitutional power by granting 140 pardons and commuting 36 sentences.

Among the pardoned: a fugitive commodities trader named Marc Rich, who has lived in exile in Switzerland since 1983. His ex-wife, Denise Rich, is a generous donor to the Democratic Party, coughing up more than a million dollars in the past eight years. Now, one of Rich's attorneys is a former White House counsel from the Clinton administration. Jack Quinn defended the pardon in today's "New York Times," writing, quote: "President Clinton insisted the Mr. Rich's lawyers make it clear that he will drop all procedural defenses against any civil actions brought against him by the United States upon his return to the country. Mr. Rich has been accused of wrongdoing that warrants, at most, only civil penalties, not criminal punishment. The Justice Department was indeed aware of this pardon application and had communications with the White House counsel's office about it. I informed the deputy attorney general of my intention to file a pardon application on Nov. 21, two months before the pardon was granted."

So joining us today to discuss all of this, from Tampa, Florida, is former federal prosecutor Morris Weinberg. Here in Washington, former federal prosecutor Reid Weingarten, Julie Stewart of Families Against Mandatory Minimums, and former Justice Department attorney Margaret Love. In the back, Jolene Vettese (ph) and Shinelle Fields (ph). And also joining us in our bureau is criminal defense attorney Jeff Connaughton.

Margaret, I want to go right to you first so that we can perhaps clear the air and talk about, what is a pardon? What does it mean when you have your sentence commuted? And how do you go about getting these things?

MARGARET LOVE, FORMER JUSTICE DEPARTMENT PARDON ATTORNEY: Well, a pardon is a kind of official forgiveness. And the Constitution gives the president the power to pardon offenses against the United States. And a commutation of sentence is a cutting short of a sentence. Usually pardons are granted after someone has already served their sentence and gone home to the community. And it has the effect of restoring civil rights. And it doesn't erase the fact of conviction, but it does -- it's very comforting to a lot of people who are very sorry that they got into trouble with the law.

COSSACK: But it always doesn't have to happen that way. I mean, pardons can be given before, and have been -- historically have been given before someone has been convicted or even given -- served their sentence, isn't that right?

LOVE: Well, I've only -- there is only one case in modern times that I know of where a pardon has been given before conviction. Well, actually that's not quite true -- two. One was the Nixon pardon, which everyone thinks of, and was very unusual. And the other one were the Iran-Contra pardons that were issued by President Bush just before the end of his presidency.

COSSACK: So the notion that a president -- I want to be as fair as I possibly can on this show today. So the notion that a president does commute or gives a pardon to someone under a certain political circumstances -- for example, the Nixon or perhaps President George Bush's pardoning of Caspar Weinberger and the people in the Iran- Contra -- that is historically accurate, and that was something they each did -- well, President Ford just as he was coming into office, but President Bush just as he was leaving office. Isn't that correct? LOVE: Well, it's certainly constitutionally permissible to do it. And the framers of the Constitution contemplated that the pardon power would be used in this sort of political fashion. They also contemplated that it would be used in a kind of a ancillary function for the justice system itself. And that's historically the way it's been used in this country. And I don't think there are very many people who remember it, but ever since George Washington, the pardon power has been used very generously, hundreds of pardons and commutations every year until fairly recently.

COSSACK: When it became less active.

LOVE: Well, it became...

COSSACK: Became more difficult to get a pardon.

LOVE: It became more difficult to get a pardon beginning in the Reagan administration. But up until that time, it had been really very regularly and generously used.

COSSACK: All right. Now, you were on the inside and working for people working with people who have applied for pardons or having their sentence commuted. Was there a structure, was there a process about the way you go about doing this?

LOVE: Sure. There's been a process in the department really ever since there was a department back in the 19th century. The pardon attorney who works for the attorney general accepts all kinds of applications for clemency, investigates them, writes up reports and makes recommendations. And those recommendations are sent to the White House. And the Justice Department's recommendations have historically been the basis on which the president acts. And, frankly, I'm not sure that there are more than a handful of cases that have not -- until this administration, I should say -- gone through that ordinary kind of regular process that's all spelled out in a set of rules.

COSSACK: But they don't have to go through that process.

LOVE: Constitutionally...

COSSACK: You said the president has the power and the president could say, get me the order, I'm signing it tomorrow, if he wanted to.

LOVE: Absolutely. But the president, historically, has felt that it was very important to go through this process because it gave him a sense of protection and regularity.

COSSACK: Of fairness.

LOVE: He certainly doesn't have to do it, but he always has.

COSSACK: All right. And what are the things that traditionally you look for when you grant a pardon? Service in the community, perhaps a sentence -- in commuting a sentence, perhaps an overly long sentence or an improper sentence. LOVE: Exactly. Right, well, I think that you look for very lengthy sentence, sentences that seem unfair because they're longer than co-defendants. You look for unrewarded cooperation with the government. For example, the things that the law can't satisfy.

COSSACK: But not extra-legal activities. For example, friendliness to people in the administration or perhaps donations to one form of the -- part of the administration.

LOVE: That was not a part of the Justice Department process, no.

COSSACK: All right.

Morris -- and I know you would rather be called Sandy so I'll call you Sandy -- you prosecuted, or initially attempted to prosecute Marc Rich. What were you prosecuting him for?

MORRIS WEINBERG, FORMER FEDERAL PROSECUTOR: He was -- we charged him and his companies with a scheme to defraud the United States that resulted in the evasion of $100 million worth of income and $50 million worth of taxes. He made $100 million worth of illegal profits on some oil deals. He set up a up a second set of books, he parked the profit on some other company's books, he laundered them out of the United States and he evaded $48 million worth of taxes.

As a result of that, during the investigation he was well represented. Edward Minnow Williams (ph) was his lawyer. He was an international financier. He chose not to come back at some point. He became a fugitive, he renounced his American citizenship, it became one of the most publicized cases of its time, probably still the biggest tax fraud of all time.

COSSACK: All right, let's take a break.

Up next, what does it take to get this pardon besides connections and perhaps luck? Plus, what is the normal communication between the president and the Justice Department in pardon cases? Don't go away. Let's find this all out. Stay with us.

(BEGIN LEGAL BRIEF)

A man who shook former President Clinton's hand four years ago at inauguration maneuvered his way through security checkpoints again this year and shook President Bush's hand shortly after the swearing- in. Capitol Police, who were on alert for the man, escorted him away but did not charge him with any crime.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

QUESTION: Marc Rich has been called "indefensible" by "The New York Times" and "unpardonable" by "The Washington Post."

QUESTION: Does the president agree or disagree, or retreat into the charming, "no comment" and ingenious evasion of his spokesman?

ARI FLEISCHER, WHITE HOUSE PRESS SECRETARY: He didn't say "no comment."

QUESTION: But how does the president feel about that? Does he agree with "The New York Times"? I do.

FLEISCHER: With all the pardons that the president took prior to it -- with all the pardons that the president -- former President Clinton took prior to assuming office, the president has not weighed in.

(END VIDEO CLIP)

COSSACK: As one of his final acts as commander-in-chief, former President Bill Clinton pardoned 140 people. Among them: a wealthy financier, whose wife was a democratic contributor; but also on the list: Susan McDougal, a one-time partner of the Clintons in Arkansas, who was convicted of fraud; Roger Clinton, the former president's brother, who spent a year in prison for a guilty plea of selling cocaine; and Patty Hearst, who was abducted and brainwashed by the Symbionese Liberation Army a generation ago.

Sandy, I want to finish up with you, in terms of what the indictment was for and what happened now.

You said that Mr. Rich -- it's my understanding -- was in Europe and just chose not to come back to face these charges. Did his -- were his companies indicted, and did his companies do anything?

WEINBERG: Yes; his companies -- well, first of all, he was in the United States but he had offices all over the world and he had an office in Switzerland and, at one point, decided not to come back to his home in the United States.

His companies were indicted; an American subsidiary and a Swiss parent. They both pled guilty in 1984, they paid 100 -- a total of $170 million in fines and penalties, including a $20 million contempt fine for the privilege of not turning over documents. That including the $50 million worth of taxes that were evaded.

COSSACK: All right, let me go now to Jeff Connaughton.

Jeff, you're a former White House counsel, you're Jack Quinn's partner. I want to talk to you not about defending this case or defending Mr. Rich, but I want to talk to you about the pardon process -- how you and Mr. Quinn were able to go about getting a pardon -- what did you do?

JEFFREY CONNAUGHTON, FORMER CLINTON WHITE HOUSE COUNSEL: Well, I was not involved in the pardon application, but I am somewhat familiar with some of the facts because I am Jack Quinn's partner.

I think -- you know, the important thing to understand here is that the president did insist that, as a condition of granting this pardon, that Mr. Rich's lawyers agree that he would drop all of his procedural defenses to any civil actions that may very well pertain against him. This is not a pardon that will shield him from all responsibility for these allegations of wrongdoing against him.

As I understand the pardon application, the crux of the issue was whether or not the wrongdoing he's accused of warrants criminal prosecution as compared to civil sanctions, and that there were other U.S. oil companies who were parties to the very same transactions which formed the basis -- the central basis for the indictment against him -- who were pursued only civilly, not criminally. And therefore, the merits of the pardon application that President Clinton gave extensive deliberations to, as I understand it, was whether or not he, as president, might agree under the pardon power that this is a case, based on the condition of waiving these procedural defenses to civil actions that might come against Mr. Rich upon his return -- that those civil actions are the appropriate way to resolve this case.

COSSACK: Jeff, that all -- and I'm going to say that that certainly is a good defense for your position. But I am forced to ask you what, if any, effect do you think the million dollars that Mr. Rich gave the Democratic Party had on your ability to get a pardon for him?

CONNAUGHTON: Again, I was not pursuing the pardon. I don't -- I know that Jack Quinn had absolutely no discussion with the president about that money.

COSSACK: I misspoke -- I think it was Mr. Rich's former wife who gave the money, so I want to make that clear; I think I may have misspoke.

Now go ahead, I'm sorry.

CONNAUGHTON: There were ample discussions about the merits of this case. President Clinton delved into the merits of the issue; and for people to deny that there is an issue here where some prosecutors may disagreement with the judgment here -- but to deny that there are merits to this question of whether or not -- when you have people who were parties to the same series of transactions, 1/2 of those transactions is pursued only civilly, but Mr. Rich is pursued criminally, is to not give the president credit for what he clearly did, which was to look at this on the merits.

COSSACK: Don't you think, though, that it opens up this kind of criticism, that only those who have a great deal of wealth, or at least a great deal of influence -- or, perhaps, know the president -- are the kind of people that get a pardon, and those who don't have that ability do not get pardons?

CONNAUGHTON: Roger, I mean, you are making the assumption as many in the press are, that that was the dispositive factor in why this man was granted a pardon. And I'm telling you that anybody that takes the time to look into this case, to understand all the actions that have led to this 17-year impasse, will understand that there is a good, colorable question here as to whether or not he should be liable only for civil penalties and not criminal punishment.

COSSACK: All right.

Let me go now to Julie.

Julie, you represent a group that is against mandatory sentences for people who get convicted of drug crimes and, therefore, you are active in trying to get pardons for those people. What do you find, in your attempts to get pardons or get their sentences commuted -- what is the usual -- what is your ability to get -- to be successful? And I take it that you don't have a lot of money or a lot of power in that sense.

JULIE STEWART, FAMILIES AGAINST MANDATORY MINIMUMS: No, we don't have a lot of money.

Well, this is first time we've tried this. We -- when Bush left office, the organization Families Against Mandatory Minimums has only been around for a year or so and we weren't yet even aware that we could submit proposals.

It was really just a matter of finding the cases in our files out of the thousands we have that we thought looked like they might be considered by the pardon attorney to be good candidates for commutation using, pretty much, the criteria that Margaret suggested earlier; and then submitting those cases both to the pardon attorney and to the White House counsel's office.

COSSACK: And your applications were based upon, what? People who had long, excess sentences...

STEWART: Absolutely.

COSSACK: ... inappropriate sentences, as opposed to others.

STEWART: People who were sentenced disproportionate to their role in the crime. So they may have 22-year sentences or 24-year sentences for first-time, nonviolent drug offenses. They've served a lot of time -- one of our criteria in choosing the cases was to make sure they had served at least five years of their sentence, that they were nonviolent, they were first offenders. You know, all the things that we felt were most clean.

COSSACK: How many did you submit to President Clinton?

STEWART: Well, we sort of sent about two dozen cases initially to the White House counsel's office and then realized that some of them weren't the best cases. So we sort of narrowed it down to about a dozen cases.

COSSACK: All right; and of those dozen cases, how many did you get -- were you successful with?

STEWART: Eleven.

COSSACK: So you hit 11 out of 12? Well, talk about an effective group.

Let's take a break. When we come back, did the former president abuse this pardoning power? Stay with us.

(BEGIN Q&A)

Q: Why did a Wisconsin judge apologize to a defendant after sentencing him to 33 months in prison on a gun charge?

A: The judge proceeded with the hearing even through the defendant had collapsed following a small stroke. The judge, known for detesting delay in his court, apologize after the sentencing.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Former president Clinton has been widely criticized for some of the pardons granted in the 11th hours of his presidency. The power of the presidential pardon is granted in Article II Section 2 of the U.S. Constitution.

Is it Section 2 or Section 3?

UNIDENTIFIED FEMALE: Section 2.

COSSACK: It's Section 2. OK, I stand corrected.

All right, but you also had some clients who were pardoned this time.

REID WEINGARTEN, FORMER FEDERAL PROSECUTOR: I do.

COSSACK: Yes, I think you were two out of four.

WEINGARTEN: Two out of four.

COSSACK: All right.

Now, what was your procedure, and how did you go about doing it?

WEINGARTEN: Just by the book. Typically at the end of an administration -- it certainly was the case with Reagan and Bush -- would-be clients come forward, wanting clemency. You interview the client. If their story passes the laugh test, you submit an application.

And in this instance, I submitted four applications, two for pardons, two for commutations. I did it. I went to the Justice Department. I filed it with a pardon attorney. I made my arguments before the pardon attorney simultaneously submitted my applications with White House counsel.

From my advantage point, it was absolutely by the book. It was on the merits. And I anticipated that I was more likely to have success where I did have success.

And I would add, exactly the same procedures here were used with the previous administrations. COSSACK: All right, when you talk about the procedures -- I mean, and you talk about what you have to go through. What about the notion of not having to go through those procedures and being successful?

WEINGARTEN: I think what you are talking about is the input of the Justice Department. Typically, you file first with the pardon attorney. The pardon attorney turns to the prosecutor who actually handled the case for an opinion, typically.

I was prosecutor for 12 years. I used to get those requests all the time. And I would typically say my case was the most important case in the world. These crimes were egregious. Never should there be clemency. And I was actually surprised that one of the pardons, this go-around in the case that I handled as a prosecutor.

But this is an extra-legal, extra-judicial procedure. The president is not and should not be constrained by the recommendation of the pardon attorney.

The role of the pardon attorney is to provide the other side to the president, who is being appealed to by the petitioner. And it's to protect the president.

But I think much of the hullabaloo here is that the president didn't necessarily follow, in all instances, the recommendations of the pardon attorney. He didn't, in my instance. And I don't think he should in all cases.

COSSACK: Sandy, I want to give you a chance to respond to what Jeff said regarding his -- Mr. Rich.

WEINBERG: Yes, I mean, what I heard was really it was preposterous. And what's particularly alarming about it is that the way this pardon happened is the southern district of New York that prosecuted it, me, you know, as far as I know, the pardon attorney from the Justice Department, they had no input in this process.

If the president was told that every other company was doing this and that -- and that only Marc Rich was being prosecuted, then the president was told a lie, because not every other company hid and evaded taxes on $100 million worth of income in the United States. Not every other company had an executive that became a fugitive and renounce his American citizenship. Not every other company participated in the kind of activity that made the case at the time...

COSSACK: Sandy, Sandy, I think you made your point. I think this is certainly an unusual one.

I think, Jeff, we want to remind, was not certainly involved that much in the pardon, but has come to us to explain what he knows.

But that's all the time we have for BURDEN OF PROOF. But before we go, let me give you some final thoughts.

How do you get a pardon? It seems that you're either lucky, or have access to the president, or give a great deal of money to the president's political party.

There's no question that the Constitution has conferred the power to grant pardons to the president. And there's also no question that we should expect that our president would use that power wisely, reasonably and mercifully.

But as Voltaire said, the brightest star in the heavens is the star of mercy, but the hottest fires of hell is reserved for the hypocrites.

I'm Roger Cossack. Thanks to our guests, thank you for watching.

Today on "TALKBACK LIVE": Is there an absence of black leadership in America? Give your opinion to Bobbie Battista, and tune in at 3:00 p.m. Eastern time.

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

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