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Burden of Proof

The Marc Rich Pardon: Was There a Crime Committed?

Aired February 15, 2001 - 12:30 p.m. ET

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

GRETA VAN SUSTEREN, CO-HOST: A criminal investigation is opened in New York. Was there a crime committed in the case of Marc Rich?

(BEGIN VIDEO CLIP)

SEN. JON KYL (R), ARIZONA: There are two separate tracks. The first is the criminal probe. Were there considerations given in exchange for the pardon. That's what the U.S. attorney will be looking into for a possible violation of U.S. code. But parallel to that is the investigation of the Congress, which will focus on whether or not there's anything else we can do with the laws to prevent this kind of unpardonable pardon being granted in the future.

SEN. HERBERT KOHL (D), WISCONSIN: Without the power, the connection to money, there's never -- there's no doubt that this pardon would not have occurred.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: After I heard pardon attorney Adams testify, I have grave doubts that Marc Rich has a valid pardon.

(END VIDEO CLIP)

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

It started in the House of Representatives, then to the Senate Judiciary Committee. Now it's made its way to New York as a criminal probe. A federal prosecutor in New York has launched a criminal investigation into the former president's pardon of Marc Rich.

ROGER COSSACK, CO-HOST: Now, U.S. attorney Mary Jo White will investigate if there was a link between political contributions and the presidential action.

In a statement released last night, Clinton again defended the pardon, stating, quote, "Any suggestion that improper factors, including fund-raising for the DNC or my library, had anything to do with the decision are absolutely false."

VAN SUSTEREN: Joining us today from New York, is former federal prosecutor Jonathan Polkes, and here in Washington, Phil Schiliro, a Democratic staff director of the House Government Reform Committee, Margaret Love, former pardon attorney for the Justice Department, and Jim Wilson, chief counsel of the House Government Reform Committee.

COSSACK: In the back, Walt Wilson (ph), Erin McKee (ph) and Hillary Lavely (ph).

Let's go to Eileen O'Connor, CNN national correspondent.

Eileen, what's the latest on the investigation by Mary Jo White? Are they specifically now looking into whether there is a connection between the -- between the money that was given and the pardon?

EILEEN O'CONNOR, CNN CORRESPONDENT: Well, according to legal sources and congressional sources, that's exactly what they're looking at Roger, because they would have to make that link. And also, they would have to prove criminal intent, the quid pro quo. Did Denise Rich give $450,000 to the Clinton library in expectation of that pardon? Was there a direct link?

Now, they'll also try to look and see if there was a pattern, and in that way, they're going to be looking at some other pardons, or that pardons that weren't granted. Perhaps were some people asked to give money to the library, didn't give money to the library and then did they not get a pardon? But this according to some Hill sources, and again, a legal source.

Now, congressional sources say that the federal investigation, you know, could complicate their committee investigations, basically because they'd hoped to get Denise Rich to come before their committees, and this could complicate the matter of giving her immunity, at least delay that.

Also, they say it's going to be very difficult to prove a direct link between the money and, of course, the pardons. And while one Hill source said to me, you know, "You can call this irresponsible, but can you call it corrupt?"

Another thing they're looking at is influence and access. Were they also contributing to the granting of pardons? But again, this is not illegal, according to congressional sources, and that's where the congressional investigations come into play. Will Congress do something legislatively to prevent this from happening? What one Hill source says that it looks like and what they're going to be trying to prove is that President Clinton was paying back political favors in the granting of some pardons.

VAN SUSTEREN: All right, well, let's talk to Jonathan Polkes, who is a former federal prosecutor in New York.

Jonathan, first of all, two issues to me, is criminal intent -- it's theoretically possible that one could have the intent, and one could not, I assume. Tell me first if that's true. And then second question to you is, the fact that an investigation is open, what do we read into that?

JONATHAN POLKES, FORMER NEW YORK U.S. ATTORNEY: Greta, that is the issue. 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, or at least that that was in Denise Rich's mind, that was in Marc Rich's mind, or whoever it is that they're looking at. It's a very hard thing to do. It's a legitimate investigation. If you look at the statute, if, theoretically, you had a videotape of Denise Rich telling President Clinton, "I'll give $450,000 to your library if you pardon my husband" -- if you could prove something like that, sure, you'd have a criminal offense.

VAN SUSTEREN: Let me ask you another one. When does an investigation get opened, just when things sort of look unseemly, or do you have to have some sort of solid evidence? You know, when Mary Jo White, the U.S. attorney, looks at this case and decides to open an investigation, what's sort of her threshold standard?

POLKES: The threshold is very low. For the federal prosecutor to start looking into something, doesn't require very much at all. They don't necessarily even have to have convened a grand jury at this point. They can serve subpoenas. They can question people. And if they think there's enough evidence to go forward, they can start presenting their case to the grand jury. But at this point, there's a very low threshold, and it would be a mistake, I think, to read too much into this.

COSSACK: You know, Jonathan, I heard what you said about whether or not they could find someone who could confirm that the money was given in return for a pardon. That's obviously going to be very difficult evidence to find. But I can't tell you how many clients, when I was practicing law, got convicted on circumstantial evidence. And suppose they came up and they found -- they found, for example, people who didn't give money, who didn't get pardoned, people who gave a lot of money who...

VAN SUSTEREN: But that doesn't show -- but wait a second, Roger. You've got that...

COSSACK: Wait! But...

VAN SUSTEREN: ... intent problem, though.

COSSACK: Wait, wait, wait, wait, wait! But you...

VAN SUSTEREN: You can't just...

COSSACK: ... can prove intent by circumstantial evidence. You know that.

VAN SUSTEREN: No, no, no. But I think that you can't be quite that lame, that people didn't get...

COSSACK: That's not lame! Jonathan, how many people did you convict on circumstantial evidence? That's not lame.

VAN SUSTEREN: Well, no, no. Your question...

COSSACK: If you've got some e-mails... VAN SUSTEREN: ... Roger -- circumstantial evidence...

COSSACK: Wait, wait! Let me...

VAN SUSTEREN: ... is different than your hypothetical.

COSSACK: Let me finish my question!

POLKES: You know...

COSSACK: Jonathan, you know, as well as I do, that circumstantial evidence can prove intent. Yes or no?

POLKES: Absolutely true, but in a bribery context, it's particularly difficult because...

COSSACK: I'm not saying it's easy.

VAN SUSTEREN: That's my point!

COSSACK: I'm just saying it can be done.

VAN SUSTEREN: I'm -- I'm...

POLKES: Yeah. No, in this context, though, the fact -- look, it was perfectly legal for her to give $450,000...

COSSACK: Right.

POLKES: ... to the library. It was perfectly legal for her to raise a million dollars for the DNC, or however much she raised. And it was perfectly legal for Clinton to pardon Marc Rich. So you have to show more than just the mere coincidence of those events in order to show that a crime took place.

VAN SUSTEREN: You can't basically- dislike the former president of the United States and think he must have done it, which is the problem that you have...

COSSACK: Well, I...

VAN SUSTEREN: ... oftentimes when...

COSSACK: I certainly agree that you can't prove anything he did just by the fact that you disliked him. On the other hand, when you have a guy who gave -- who -- two fugitives who gave a tremendous amount of money to the president's pardon...

VAN SUSTEREN: No, no, no.

COSSACK: ... it certainly raises...

VAN SUSTEREN: It's...

COSSACK: ... some questions.

VAN SUSTEREN: That's not that...

POLKES: You know, Roger...

VAN SUSTEREN: No, no. Wait a second. Marc Rich didn't give money to the president of the United States or to his library. It was Denise Rich. You can't just sort of blur those...

COSSACK: You mean the loving ex-wife?

VAN SUSTEREN: Well, come on. You've got to stick to the facts, Roger.

COSSACK: Oh, come on!

VAN SUSTEREN: You can't...

COSSACK: I mean, how many ex-wives do you know that want to help their husbands that much?

VAN SUSTEREN: You know, I...

COSSACK: I'm saying the facts are the facts.

VAN SUSTEREN: No, I think -- no, I think...

COSSACK: And the odor is the odor.

VAN SUSTEREN: I think that's where you're being irresponsible. You've got to look at the facts. Denise Rich contributed...

COSSACK: You know what I think?

VAN SUSTEREN: ... to the library...

COSSACK: I think we should talk to our guests.

VAN SUSTEREN: Go ahead.

(LAUGHTER)

VAN SUSTEREN: Margaret, you worked in the pardon office. Let me...

COSSACK: And her last name is Love. I mean, talk about -- for somebody that we have to have here...

(LAUGHTER)

VAN SUSTEREN: All right, I'll let Roger go to break. Go to break! Never mind.

COSSACK: All right. I can see that I've discombobulated everything. And we really do like each other.

Up next: behind closed doors at the Justice Department. We'll talk to someone who's been there. Don't go away. (BEGIN LEGAL BRIEF)

Michael Skakel's attorney is appealing a judge's ruling to try his murder case in adult court. Skakel was charged with the 1975 murder of his Greenwich, Connecticut, neighbor, Martha Moxley. They were both 15 when Martha was killed.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JACK QUINN, ATTORNEY FOR MARC RICH, FORMER CLINTON WHITE HOUSE COUNSEL: You may disagree with him and with me. You may believe he made a terrible mistake. But I tell you today that nothing, absolutely nothing in my conversations with him remotely suggested to me that he was thinking about or motivated by his friendships, his politics or his library.

(END VIDEO CLIP)

COSSACK: All right, we're back. We've made peace. And we're going to...

VAN SUSTEREN: Maybe.

COSSACK: ... Margaret Love -- maybe!

VAN SUSTEREN: Don't -- don't...

COSSACK: And we're going to go to...

VAN SUSTEREN: Don't count on it.

COSSACK: OK. And we're going to go to Margaret Love, and we're going to talk about the process of the pardon and why this whole issue has come to light the way it has.

You are intimately familiar with how the pardons process works. Is this unusual? Is this the kind of thing that should generate a criminal investigation?

MARGARET LOVE, FORMER U.S. PARDON ATTORNEY: Well, I really can't talk about the facts of the Rich case. I can say that one of the problems with this case is that the ordinary procedures, the rules that govern pardon applications weren't followed. And I think no matter what, when the rules aren't followed, there are suspicions, there are concerns, there are definite irregularities that cause people to raise questions.

COSSACK: But now I want to be super fair because, you know, I got Greta on my...

(CROSSTALK)

VAN SUSTEREN: ... police officer...

COSSACK: I got my police officer -- I got my parole officer on my right, my pardon officer!

It doesn't -- the process doesn't have to be followed. I mean, look, the president, under the Constitution, does have the right to pick up the phone and say, "Type up a pardon" for anybody. "I'm ready to sign it." Right?

LOVE: Well, that -- that's right. But for 100 years, because of the wide discretion that the president has, he has thought it wise to follow his attorney general's -- follow his attorney's -- his attorney general's recommendation in these cases. And that protects him. And the point is, yes, certainly, the president can do whatever he wants. But the -- the way to do that is to follow the procedures, and that makes the suspicions much less.

VAN SUSTEREN: Are you saying that sort of -- I mean, it seems to me like a smarter idea to go through the routine procedure. We saw former president Ford pardon former president Nixon. We saw former president Bush pardon Caspar Weinberger and I think another...

(CROSSTALK)

VAN SUSTEREN: Yeah, without going through the process. But it certainly makes it look -- it eliminates some of this controversy. Is that what basically you're saying? Not that it's necessarily wrong, but it certainly makes it easier.

LOVE: That's right. And you've named two of the three examples that I can think of in the last 50 years where the president did not go through the department's process. And those are the ones that everyone remembers. Those are the ones that caused scandals. So I think that, to a great extent, the president does protect himself and has protected himself historically by following this process and by doing it in a very regular way.

VAN SUSTEREN: Jim, the Justice Department -- you're -- the committee on which you work has asked for immunity for Denise Rich. She's indicated her intention to take the 5th Amendment if called to testify.

JIM WILSON, CHIEF COUNSEL, HOUSE COMMITTEE ON GOVERNMENT REFORM: Well, actually, let me -- let me cut you off there because there's something important to understand. We asked for the opinion of the attorney general. Now, the chairman of our committee has behaved very responsibly when immunity situations have come up and has asked for input. And so we got input yesterday. They asked us to hold off for a short period of time. And now, through all the reporting last night, the public knows why we've been asked to hold off. And we will do that. And we will behave responsibly because the committee doesn't want to get into a situation where it causes anything negative to happen in any type of law enforcement process.

VAN SUSTEREN: And for the benefit of the viewers, that if -- if Denise Rich were to get immunity from your committee and then later, hypothetically, it turned out that she'd committed some sort of crime, that she would have immunity, and that would protect her from prosecution. So that's the...

WILSON: Right.

VAN SUSTEREN: ... the juggling reason.

WILSON: That's what we're concerned about, and so we're going to behave responsibly on that front. That doesn't mean we're going to stop investigating because there are many things that we need to find out. And I think you have to remember that the southern district of New York wouldn't know about things that -- that we know about now unless we had had our hearing last week. They wouldn't know that the president was trying to turn around his own lawyers. They wouldn't know that the chief of staff in the White House was talking favorably about keeping things under the radar screen. They wouldn't know about the conversation between the president and Beth Dozoretz, the former DNC finance chair and Denise Rich 10 days before the pardons when the president was talking...

VAN SUSTEREN: What were they talking about? Do you know what they were talking about?

WILSON: Well, they were talking about the pardons. They were talking about Marc Rich's pardon and they were talking about Michael Milken's pardon. Now, the president certainly can do that, but it raises some concerns that the president's talking about pardons with the former finance chair of the DNC. It's rather odd.

COSSACK: Phil, in light of the fact that we -- one of the thing we do agree with -- and I do agree with Greta on this -- is that no matter what, it's going to be very, very, very difficult to prove a crime beyond a reasonable doubt under these circumstances. And perhaps...

VAN SUSTEREN: And there may be no crime! I mean...

COSSACK: And -- and there may very well be no crime. I'm even going to agree with you on that. But I guess the point I'm getting to is, should there be -- in light of the difficulty, should there be a criminal investigation?

PHIL SCHILIRO, DEMOCRATIC STAFF DIRECTOR, HOUSE COMMITTEE ON GOVERNMENT REFORM: Well, I think if there's any evidence that there was wrongdoing, there should be a criminal investigation. Starting a criminal investigation and then making the assumption that something criminal happened are two different things.

COSSACK: And -- and I agree with that.

SCHILIRO: So I think there's enough out there now to do this preliminary work, but if the basis is circumstantial evidence, that's a slippery slope. The insurance companies have given millions of dollars to congressmen, the pharmaceutical industry has given millions of dollars to congressmen, the tobacco industry's given millions of dollars to congressmen not to have or to have certain things happen. And when those things happen and they've given the money, if this is the model we're using, that if you give money then you've certainly done something wrong...

(CROSSTALK)

VAN SUSTEREN: But where is that intent...

SCHILIRO: That's a problem.

VAN SUSTEREN: Where -- where is that intent element that makes it criminal? When the pharmaceutical money gives money to congressmen or when tobacco or insurance -- I mean, what are...

SCHILIRO: Unless you have...

VAN SUSTEREN: What is that intent?

SCHILIRO: Unless you have a witness saying "We gave this money"...

VAN SUSTEREN: But what if you say, "Look"...

SCHILIRO: ... "to get this result"...

VAN SUSTEREN: What if I give you, you know, a gazillion dollars, and I say, "Hi. I'm from the insurance industry. There's some new legislation. I hope it doesn't pass."

SCHILIRO: That doesn't meet the test.

WILSON: Oh, let -- let me...

SCHILIRO: Can I just finish the thought? Because I think you just put your finger on the key issue for the Rich case, is there are two people who can tell you whether that happened in this instance, Denise Rich and President Clinton. And all the other subpoenas we're issuing, all the other information we're getting, that's fine, but if you want to get to intent, those are the two people...

(CROSSTALK)

WILSON: Phil raised a very important point here. And the fact is, we know about those contributions from the tobacco companies and the insurance companies. We know about them. What we know now is that the president himself is trying to keep people from learning about his presidential library foundation. Now, something people haven't focused on was the last year a congressman introduced legislation to make all contributions to the library public, all libraries, all presidential libraries. And that legislation didn't pass. That's something we need to look at this year. And it's hard to...

VAN SUSTEREN: Well, I'm not convinced -- and we'll talk about that. I'm not convinced that -- I mean, you haven't persuaded me that the president's opposed to seeing who contributed to his library.

WILSON: Well, absolutely. He's had his lawyer go out and tell us very specifically that he is going to oppose...

VAN SUSTEREN: And it -- and it will...

WILSON: ... our request to learn who gave money to the library.

VAN SUSTEREN: And it will get resolved in the orderly course of business, whether it does have to be disclosed or not disclosed.

WILSON: He should put that on the table right...

(CROSSTALK)

VAN SUSTEREN: Let me...

SCHILIRO: I don't want misinformation out, though.

VAN SUSTEREN: OK.

SCHILIRO: And it's important. What Jim said is absolutely wrong. The tobacco industry, the pharmaceutical industry, the insurance industry give millions of dollars to groups called -- like "Citizens for a Sound Economy." These are shell groups for the companies, and their contributions are never disclosed. So that's a distinction that makes no sense under the current system because the insurance companies do that today.

VAN SUSTEREN: All right, we're going to take a quick break. When we come back, we'll talk more about this.

(BEGIN Q&A)

Rap singer and Grammy nominee Eminem accepted a plea bargain Wednesday and pleaded guilty to carrying a concealed weapon. What charge was dropped in return for his guilty plea?

Answer coming up.

(END Q&A)

(COMMERCIAL BREAK)

(BEGIN Q&A)

Rap singer and Grammy nominee Eminem accepted a plea bargain Wednesday and pleaded guilty to carrying a concealed weapon. What charge was dropped in return for his guilty plea?

A charge of assault with a dangerous weapon was dropped.

(END Q&A)

VAN SUSTEREN: Welcome back. BURDEN OF PROOF update. Roger and I are still talking -- just barely.

(LAUGHTER)

VAN SUSTEREN: So anyway, let me go back to you, Margaret.

Margaret, this whole controversy about pardon -- and the Constitution says the president has a right to pardon. Is there any way short of an amendment it could be adjusted or curtailed or limited, and should it be?

LOVE: I don't think that that -- that the pardon power should be curtailed, either by a constitutional amendment or by making some effort to control the administration of the power through legislation. I think we've got to restore a kind of trust in the process. I think that the president has got to think about how he wants to exercise this power. And then, once he thinks about it, I'm sure he'll decide that it ought to be done in a regular public way, and then he should decide how to administer it so as to keep some kind of confidence.

VAN SUSTEREN: I agree. I mean, we could do without this controversy, but I always go back to President Ford pardoning Richard Nixon, which I think was one of the smartest things. It cost him the presidency, but it stopped all this fighting. This whole civility thing that everyone's been talking about, which was supposed to come back to D.C., but which, of course, has escaped us. But it really ended that whole Nixon problem.

COSSACK: Well, I couldn't agree -- this is one I really do agree with you. I wouldn't -- I wouldn't change...

VAN SUSTEREN: You came back to my good graces. Keep going.

COSSACK: Yeah, you bet. I'm -- you can see me kissing up a little bit here. I wouldn't change that Constitution one bit...

VAN SUSTEREN: I wouldn't, either.

COSSACK: ... in terms of what the president's...

VAN SUSTEREN: And neither does -- no, neither does our current president, Bush, want to.

COSSACK: Right. All right, let me go to Jon...

LOVE: You know, Greta, there were...

COSSACK: I'm sorry. Go ahead.

LOVE: ... a lot of other pardons that Ford did. He did hundreds of other pardons and nobody even knows about them.

COSSACK: Right. But most -- you shouldn't know about them. I mean, they shouldn't be high-profile.

VAN SUSTEREN: Well, they should be public, though.

COSSACK: Well, all right.

VAN SUSTEREN: I mean, you know, there is that. COSSACK: Jonathan, let's -- this investigation's going to begin. You're the U.S. attorney. Who are you sending subpoenas to? Who are you sending the FBI out to talk to?

POLKES: The first thing you're looking to do is follow up on what you and Greta were talking about a moment ago, which is to find out where the money came from that Denise Rich used to contribute to the library and to the DNC. Was any of that money coming from her former husband or through various cut-outs from her former husband? And if so, then maybe they can start to build some kind of a case that Marc Rich was really using this as bribe money to pull levers. And also you could start to build a money-laundering case.

VAN SUSTEREN: Jim, give me a preview of what my spring is going to be like at BURDEN OF PROOF. What does your committee intend to do? Where are we headed?

WILSON: Well, first, you know, we're going to be respectful of the Department of Justice process. But second, we're going to move forward. There are legislative issues we've got to think about. We're going to have a hearing in a couple of weeks, and we're going to invite Beth Nolan, the former counsel to the president, Bruce Lindsey, his adviser, John Podesta and Jack Quinn to testify to try and find out what happened at the White House. We don't really know. And so you know, earlier we were talking about criminality, these types of things. We're not there yet. We're trying to find out what happened in this process. And Congress is trying to find out so that we can -- if we need to take legislative steps, do something positive.

VAN SUSTEREN: Phil, what about that?

SCHILIRO: Well, I think there's bipartisan agreement that the pardon was a -- was a wrong decision by the president. I think there's probably a split now on whether we're holding President Clinton to a double standard. If we're going to proceed in a bipartisan way, that's what we should do. This is the first I've heard, today's show, about this hearing in two weeks, so we're not working in a bipartisan way on that. I frankly don't know how much that's going to contribute to what we know.

Denise Rich can tell us what we need to know, and President Clinton can tell us what we need to know. I think we've already heard from Jack Quinn now for almost 20 hours of public testimony. Bringing him back for a third day is going to add very little to what we'll know. It'll give us another topic for the show, but in terms of adding to our public knowledge...

(CROSSTALK)

WILSON: Well, now, there's another component here. One thing we are going to do and we need to do is we're going to ask the president to waive his claims of privilege, and we're going to ask Mr. Rich to waive his claims of privilege. Now, Jack Quinn has said that this is...

VAN SUSTEREN: You know what? CLINTON: ... a process that's been transparent...

VAN SUSTEREN: I got to tell you, even President Bush would probably have an absolute fit to ask a former president to waive a privilege. You're really going far out on that one, I think.

WILSON: Well, now -- now, think back...

VAN SUSTEREN: I think...

(CROSSTALK)

WILSON: ... to Iran-Contra. President Reagan waived all of his claims of privilege pertaining to Iran-Contra. So it's not unprecedented, and I don't think there's a problem with this at all. But more important, Mr. Rich -- we're sitting on stacks of -- of privileged documents that we can't see. We've got privileged logs from all the law firms, and there's all sorts of information that -- that thus far Mr. Rich doesn't want us to look at. Now, if they want to have this transparent and they want to put all the cards on the table, they ought to do that.

COSSACK: Jim --

(CROSSTALK)

COSSACK: I'm sorry, we've got to go because that's all the time we have today. Thanks to our guests. Thank you for watching.

Boy, we're going to be talking about this for a long time!

VAN SUSTEREN: And join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.

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