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Marc Rich Pardon: Former Deputy Attorney General Eric Holder Testifies Before Senate Judiciary Committee

Aired February 14, 2001 - 11:44 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 coverage continues now of the two important hearings taking place today on Capitol Hill. To the left of your screen: the election hearing. This is the House, Energy and Commerce Committee -- members of that committee currently making opening statements. We have yet to hear from the head of the network news departments that will be testifying before this committee.

And when they do, you will see the comments live here on CNN. Meanwhile, we are going to go back to the pardon hearing. That is to the right. You see the former Deputy Attorney General Eric Holder testifying now before the Senate Judiciary Committee. We will go ahead and listen in. (JOINED IN PROGRESS)

ERIC HOLDER, FMR. DEPUTY ATTY. GENERAL: ... something along those lines. But I never actually saw that letter, the January 10 letter, which I think contained or attached a letter from Mr. Quinn to the president on January 5.

I did have a call with Mr. Quinn on January 19, in which he indicated to me that I would probably be receiving a call from the White House, shortly thereafter. And I indicated to him, I think as said in my written remarks, that based on his recitation of the facts I was not strongly opposed to the pardon request.

But what I want to make clear is that at all times in my interaction with this, this was not something that was for me a priority matter, because I didn't think this was something that was likely to happen, given the fact that Mr. Rich was a fugitive. In the time that I've been deputy attorney general I'm aware of only one case in which a pardon request was granted to a fugitive.

SEN. MIKE DEWINE (R), OHIO: I want to make sure I understand the facts. So you did know that he was a fugitive under the facts as recited to you by Mr. Quinn?

HOLDER: Yes. I knew he was a fugitive.

DEWINE: You knew he was a fugitive, and still you said you didn't know that you necessarily had any objection to that? Didn't the fact that he was a fugitive bother you?

HOLDER: Sure it did. What I said to the White House counsel ultimately was that I was neutral on this because I didn't have a factual basis to make a determination as to whether or not Mr. Quinn's contentions were in fact accurate, whether or not there had been a change in the law, a change in the applicable Justice Department regulations, and whether or not that was something that would justify the extraordinary grant of a pardon.

DEWINE: So the fact that he was a fugitive did not take it out of the realm of possibility? You didn't say, "Well, gee, he's a fugitive, therefore I wouldn't be in favor of this." I mean, you come down you're neutral based on the facts as given to you by Mr. Quinn. I just want to make sure I understand your rationale here, your thought process.

HOLDER: Essentially what I was trying to say, what I tried to convey, was that I didn't have a basis to make a determination; again, assuming that what Mr. Quinn said -- I mean, you're accurate, I did not reflexively say that I was opposed to this because he was a fugitive, having had that experience with I guess Mr. Preston King, who was a fugitive and who ultimately was granted a pardon that I supported. But I did not think, given the fact that he was a fugitive, that this was ever a matter likely to be successfully concluded from Mr. Rich's perspective.

DEWINE: Thank you, Mr. Chairman.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Thank you, Senator DeWine.

Senator Kohl?

SEN. HERBERT KOHL (D), WISCONSIN: Thank you, Senator Specter.

Mr. Adams, Mr. Holder, one of the questions this raises which resonates across the country today is fairness, the ability of the average citizen to have equal access to power and the government, to redress, to have their grievances considered. And of course, in theory, that's what America's all about. We all know that sometimes reality is not the same as theory. But our job here, your job and our job, is to do everything we can to bring that as close to possibility as we can in this country.

And there probably isn't one person across this country today who is familiar with this case who doesn't think that's it's a question of power, connection, money, and that in fact is how this pardon occurred. Without the power, the connection, the money, there's no doubt that this pardon would not have occurred. At least that's the perception across the country.

Now, what is your response? You know, you're part of the system. You know, I don't think you can just walk away from it, nor do I think you want to. So what do you say to the people of our country who are saying this stinks, because if you're rich, you're powerful, you're well-connected you can get something done. And if you're not, you can't get anything done, so the government is not a government of the people, by the people, for the people?

HOLDER: Let me take a stab -- I'm sorry, Senator. KOHL: Mr. Holder, go ahead.

HOLDER: Just speaking on behalf of what happens in the Justice Department, and certainly speaking specifically about the work of Mr. Adams, his predecessors and the people who work in the pardon attorney's office, I think the American people should be reassured that they make their determinations and recommendations based only on the information that is in front of them. Big guys and little guys I think get treated really within the pardon attorney's office, and I'm proud of the work that they have done. I appointed Mr. Adams to be pardon attorney; he's a capable guy and I think has done a very good job.

Beyond that, it's hard to say what goes into the final determination that any president makes in deciding whether or not to grant a pardon, who the president listens to, what influence a particular person might have.

I think the thing that again that I'm most familiar with is what happens within the Justice Department aspect of the process. And I think, there, people are treated the same.

KAGAN: Tough questions from former Deputy Attorney General Eric Holder, appearing today before the Senate Judiciary Committee as they look into how the last-minute pardon was handled of financier Marc Rich. We'll take a break -- more hearings after this.

(COMMERCIAL BREAK)

KAGAN: And as we go ahead and rejoin the Senate Judiciary Committee hearings other, we are seeing former Deputy Attorney General Eric Holder still answering some questions from the committee members. Right now I believe that the man doing the questioning is senator Herb Kohl from Wisconsin. Let's listen in.

HOLDER: But, you know, the former president -- no president, I think, has an absolute duty to explain those kinds of decisions. It seems to me that the Constitution, in making the power as unfettered as it is, in some ways anticipates the notion that you'd want to have a president exercising that power, obviously responsibly but without any kind of collateral fears. I think that's probably the best answer I could give.

KOHL: Mr. Adams, do you want to say something?

ROGER ADAMS, PARDON ATTORNEY, DEPARTMENT OF JUSTICE: I think, Senator, what you're asking for is sort of my -- are you asking for my opinion of the whole...

KOHL: Yes, of course.

ADAMS: Well, I mean, I'd really have to -- I do have an opinion on what happened in this situation, but, you know, I have to tell you, Senator, I'm here as a representative of the Justice Department and to give you facts and information that came to my attention, and I just don't think it's appropriate for me to express some... KOHL: What is your opinion? You know, we're interested in your opinion.

ADAMS: I just don't think it's appropriate for me to give an opinion on the question you asked. I just would prefer not to give a personal opinion, given the position that I held then and hold now.

KOHL: Why wouldn't you want to give us your opinion?

ADAMS: Well, as I indicated, Senator, I'm...

KOHL: Wait, Mr. Holder has an...

HOLDER: Senator, maybe if I could just interpose? I mean, Mr. Adams is a career Justice Department employee, and he is a person who I'm sure has called these things as he has seen them. And regardless of what his personal opinion is, he's a good lawyer, and good lawyers have to frequently do that, but aside their personal opinions and make determinations based only on the facts and the law.

I think I can understand how he feels uncomfortable. I was a Justice Department lawyer myself, a trial lawyer for 12 years. And I would ask, to the extent you'd see would be appropriate, to not make him express a personal opinion, and to the extent we can restrict the questioning of him to the way in which he performed his official function. It is only a request, I think, that I'd make actually on behalf of all the career people within the department.

KOHL: Well, you're a pardon attorney in the Justice Department?

ADAMS: That's correct.

KOHL: So when pardons occur, Mr. Adams, you're interested in what happens, forget about anything else. You're an American, you care, you're an important person in the process, and you like to see pardons occur in an orderly way, just because that's a man taking pride in his job and I'm sure that would describe you.

ADAMS: That's basically correct. Sure, I do.

KOHL: And in this case, do you feel good about that pardon?

ADAMS: All I can tell you, Senator, is that this case was clearly not -- this was a very unusual situation. The Rich and Green case were not handled anything approaching the normal way. I guess I have a parochial interest in seeing that they -- I would prefer that things be handled the normal way. But when a president, for whatever reason, decides not to handle things in an orderly -- in a way in conformity with the regulations, there's very little that I can do about it.

KOHL: Yes, you may feel terrible about it which you obviously apparently do, but you feel there's -- but you're pointing out to us there's nothing you can do, as a matter of fact.

ADAMS: That's correct. If the president decides to not follow the procedures, as is any president's right -- in other words, if he doesn't want input from the Justice Department, if he doesn't want an investigation from my office, you know, I can't force one down his throat.

HOLDER: One thing I'd like to add, Senator, in terms of the "big guy, little guy" thing, questions of influence, a fair number of the pardons that were granted were -- I think as Senator Feingold indicated -- pardons of people who were serving extremely long drug sentences. These were, by no stretch of the imagination, people who were wealthy or connected and, yet, there were people who advocated on their behalf. And so, as I said before, I think I have to concede that certainly there are certain people who have an ability to get people of influence to lobby on their behalf. But the fact that you don't have that does not necessarily mean that a pardon request will be unsuccessful.

KOHL: Sure. Thank you. Thank you much.

KAGAN: Once again, questions from the Senator Judiciary Committee to Eric Holder and also Roger Adams: Roger Adams of the Justice Department handling pardons; Eric Holder, former deputy attorney general -- questions surrounding the Marc Rich -- the financier who was pardoned in the last minutes of the Clinton administration -- more questions ahead -- more coverage of the Senate Judiciary Committee just ahead -- right now a quick break.

(COMMERCIAL BREAK)

KAGAN: Our coverage continues of two important hearings taking place today on Capitol Hill: one on the Senate side, one on the House side.

On the left-hand of your screen, you see the House Energy and committee -- the House Energy and Commerce Committee. They are meeting today talking about what went wrong on election night, November 7, in terms of network news coverage. Appearing later today in front of this committee will be the top network heads of the people who run the network news in the United States, including our own Tom Johnson, head of CNN; Roger Ailes of Fox News; Andrew Lack of NBC; Andrew Heyward of CBS; and Davis Westin of ABC.

When those men do appear before that committee on the House, we will show you that testimony live.

Meanwhile we've been monitoring all morning long the pardon hearing taking place before the Senate Judiciary Committee. They are looking into the issue, specifically, of the last-minute pardon of financier Marc Rich, something that former President Clinton did in the last moments that he was president of the United States. We will go ahead and continue to listen to this hearing right now. On the witness stand, or acting as a witness, is former Deputy Attorney General Eric Holder.

(JOINED IN PROGRESS)

HOLDER: ... same way that staff-level conversations, I found out subsequently, were going on about New York-related...

SEN. JON KYL (R), ARIZONA: Could I just interrupt you there, though? And it's a reasonable assumption that somebody would have told someone. And yet, it is now the last minute, and this is just before the administration is going out of office, you're being asked for your recommendation.

And the usual procedure is for a whole raft of documents to be submitted to you, a whole series of recommendations from the pardon attorney and so on, and you are the one that makes the final recommendation then on this matter, and you had none of that. So you knew at that time, anyway, that whatever conversations that may have occurred within the Justice Department, that the proper procedures had not been followed, because you didn't have a recommendation from those below you, you had no basis upon which to make a recommendation to the White House, other than what Quinn might have told you.

HOLDER: Yes. And my interaction with the White House, I did not view as a recommendation. Because you're right, I didn't have the ability to look at all the materials that had been vetted through the way we normally vet materials.

And as I indicated in my written testimony, if there were ways in which I could redo this, there were certain things I would have done differently. And I think the one thing that would have changed this whole thing if I'd had said to the person on my staff, "What's the status of the Rich matter?"

Again, assuming that these conversations were going on, if I had said that to her and found out from her that there were no ongoing conversations, that I think would have fundamentally changed the way in which the Justice Department approached this case generally and how I approached the case specifically. But I did not do that, and I admit that.

KYL: You acknowledge that on your part. And just a last question: If Jack Quinn says that he took from your conversation with him and your conversation with Beth Nolan enough of a positive recommendation, or at least not a negative reaction, to be able to argue to the president that he had run it by Justice or run it by you or words to that general effect, creating the impression with the president that you approved of it, would you disagree with that characterization of Mr. Quinn?

HOLDER: Well, I think running it by Justice is actually a pretty good description of what happened.

(LAUGHTER)

HOLDER: Somebody at the White House had to know that whatever I said was based on a process that did not allow me to have the kinds of materials that Mr. Adams normally gave me. I mean, somebody in the White House had to know this. Again, I don't know if it's inadvertent, design, whatever. But somebody had to know that any recommendation or comment from Holder is not based on the kinds of materials that he normally has access to. The White House never sent to us the pardon application that had been filed with them. As Mr. Adams indicated, his interaction with them was at 1:00 or 12:00 or whatever it was in the morning.

So for people to think that the deputy attorney general is speaking on behalf of the Justice Department in the way that he normally does when it comes to making recommendations, given this record, I don't think is supported by the facts. And there obviously had to be people in the White House who knew that. Now, it might not have been the president. You know, it might not have been the president, but at least somebody, it seems to me, in the chain had to know that I didn't have in front of me all the normal materials that I would have had in expressing a recommendation.

KYL: Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Kyl. Thank you very much, Mr. Holder and Mr. Adams. If you gentlemen would step back, but remain for the balance of the hearing, we would appreciate it. There may be some follow-up question we'd like to ask.

I'd like to combine the second and third panels, because we're running late. If Mr. Quinn, Mr. Becker, Mr. Gormley, Mr. Schroeder would step forward, please?

KAGAN: As the Senate Judiciary Committee takes care of these housekeeping items, we'll go ahead and take a break and be back right after this.

(COMMERCIAL BREAK)

KAGAN: And we're going to go ahead and return to the Senate Judiciary Committee as they continue to look at the issue of the Marc Rich pardon. Right now, acting as a witness is Professor Benton Becker. He is a former White House counsel to President Ford. Let's go ahead and listen in.

(JOINED IN PROGRESS)

PROF. BENTON BECKER, UNIV. OF MIAMI LAW SCHOOL: ... occur in our country -- be the subject of judicial review pertains to instances where the grant of a presidential pardon concurrently satisfies the elements of, and the evidentiary requirements of, a federal bribery or other federal acceptance of gratuity statutes. I do not represent to this committee that that is the case in the Rich and Green pardons.

Such circumstances have been most appreciatively nonexistent in our country. But approximately 20 years ago, in the state of Tennessee, Tennessee successfully suffered through litigation disputing the constitutionality of initiating criminal prosecution against its then-seated governor in a criminal case wherein it was asserted that the governor of the state of Tennessee regularly engaged in the wholesale sale of pardons and commutations.

I'm advised that this committee is considering what legislative enactments, if any, it might undertake to prohibit or to deter future presidents from issuing presidential pardons similar to those granted to Mr. Rich and Mr. Green. Initially, I would affirm that any constitutionally valid legislative enactment that undertakes to restrict the president's pardoning power under Article II, Section 2 must be enacted as a constitutional amendment. A legislative enactment adopted by a majority of both houses of Congress and signed by the president restricting the presidential pardoning power in any manner would clearly be unconstitutional.

Therefore, Senators, any change in the law on the subject of presidential pardons must by necessity require a change in the Constitution of the United States. I do not recommend passage of a constitutional amendment on this subject. A proposed constitutional amendment granting congressional or senatorial approval or veto authority over presidential pardons is, in my view, unwise and unnecessary. The founding fathers placed that absolute power, albeit undemocratic power, in the Constitution in recognition of the fact that governmental adherence to the letter of the law does not in all instances result in justice, and to hedge against those instances of injustice, a nonreviewable pardon power, as granted to the president.

There is little doubt in my mind that that power was not meant for people like Mr. Rich and Mr. Green. But that does not, in my view, justify tampering with or cluttering our Constitution.

Mr. Chairman, in the interest of time, I would submit that the remainder of my statement simply be admitted into evidence.

SPECTER: Without objection, your full statement will be made a part of the record.

BECKER: Thank you, sir.

SPECTER: We'll proceed with Professor Gormley at this time. Professor of law at Duquesne University School of Law, specializes in constitutional law, civil rights litigation, First Amendment, legal writing and property. A very extensive background with a JD from Harvard Law School in 1980, and a BA from the University of Pittsburgh, suma cum laude.

And we welcome you here, Professor Gormley, and look forward to your testimony.

PROFESSOR KEN GORMLEY, DUQUESNE UNIVERSITY SCHOOL OF LAW: Thank you very much, Senator Specter. I appreciate your invitation, the invitation of Senator Hatch and the entire committee to be here today. I have a modest degree of expertise in the subject of pardons. I am the author of the biography of Archibald Cox, the Watergate special prosecutor. And flowing from that, became interested in the Ford pardon of Richard Nixon and organized a program at Duquesne University in 1999 on the subject of the pardon on the 25th anniversary.

And after an admittedly short period of time to reflect and research for today's hearing, I still have to say, I find myself hesitant when it comes to any constitutional revision of the presidential pardon power. First, if you take a look at the large number of pardons granted in our country's history, over 13,000 in the 20th century alone, there are a surprisingly small number that have come under attack as illegitimate. There are plenty of colorful ones, some controversial, some allegedly designed to further the political or personal interest of a president. But I'm not sure there are enough, or enough egregious ones, to justify an amendment, no matter how one constructs it.

Unless there is a clear track record of abuse or dysfunction, I think over many years and many administrations, I would be inclined to err on the side of not upsetting the constitutional apple cart.

As I understand it, one consideration at this time is an amendment that would give Congress power to enact rules by which the president or the Department of Justice would have to adhere in dispensing pardons. And that would certainly prevent the president from bypassing DOJ procedures as arguably, as we just heard, occurred in the case of several of President Clinton's pardons and, indeed, some other pardons in the past 30 years or so.

I worry, however, that that kind of a constitutional amendment would do serious harm to separation of powers, even if it was limited to simply procedures, dealing with procedures by which the president and Department of Justice were required to process pardons, because it could still be used, in effect, I think, Senators, to wrestle a core executive function away from the president. And we could discuss that in the question period, if you would like.

The most attractive alternative, at least on the surface, would be the so-called Mondale amendment that you described, Senator Specter, that was introduced shortly after President Ford's pardon of Richard M. Nixon in 1974. Something like that would certainly avoid the most serious constitutional concerns. It would keep the pardon power lodged in the executive branch. It would presumably limit Congress' involvement to extreme cases. In many ways, it's similar to the Senate's power to advise and consent with respect to presidential appointments, treaties and so on.

But I still worry that the constitutional retooling in order to accomplish even that, a benign amendment like the Mondale amendment, would have unwanted consequences. And I suppose here I agree with Hamilton and Madison that the pardon power uniquely is best reposed in one person, the head of the executive branch. And I fear that pardons by committee, which this could become, would not be a good thing. And my greatest worry is that it would strip the president of the pardon power during moments of passion, during moments of crisis when he or she needed that pardon power the most.

President Ford's pardon of Richard Nixon, I think, is a great example of that. As you remember, at the time President Ford granted that pardon in 1974, the public reaction was outrage, disapproving. And it didn't die down in a 100-day period either. It may have well cost Gerald Ford the election of 1976. Twenty-seven years later, however, the Ford decision to pardon Nixon, to bring finality to the Watergate crisis, is viewed by many scholars and citizens, including myself, as a good thing, something that really did heal the country.

Would the Ford pardon have survived a Mondale amendment? I can certainly see a scenario where it would not have because of the passions at the time. I could see a two-thirds vote to overturn that. On the plus side, a Mondale-type amendment would allow us to get at some of these, as I call them in my prepared statement, "bad pennies." It would turn up a few abuses, but it would also create, I think, Senators, a powerful temptation for Congress and for the American public to interject themselves in the most lonely and difficult of the pardon decisions.

The wisdom of many pardon decisions, I think as we're going to see, is only judged with a period of time and reflection. And so allowing a legislative veto, even with a high two-thirds threshold, might rob the president of his or her ability to act with swiftness, definitiveness and courage in the most difficult of circumstances. And the cost to the nation, it seems, might far exceed the benefit of rooting out the occasional bad coin.

Those are my preliminary thoughts. I do believe, and I want to say that I believe that hearings like this are extremely important. I agree with your comments, Senator Specter and Senator Sessions, that it's extremely important for us, in a democratic republic, to have these things out in public, and to put future presidents on notice that it's the best thing for all concerned to follow the Department of Justice procedures and to do these things according to certain procedures.

I welcome your questions, and I thank you for the privilege of testifying, Senator.

SPECTER: Thank you very much, Professor Gormley.

We now turn to Professor Christopher Schroeder, doctor of law, from the University of California, master of divinity...

KAGAN: All right, with that we're going to go ahead and take a quick break here from the Senate Judiciary Committee. We are standing by waiting for the witness list, which does include Jack Quinn, who is the attorney for Marc Rich. And this, of course, the topic of the Senate Judiciary Committee today: the quick pardon, the last-minute pardon of Marc Rich in the final moments of the Clinton presidency. We'll take a break waiting for Jack Quinn's testimony and we'll be back after this.

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