2d Session
107-454
On March 14, 2002, the Committee on Government Reform approved and adopted a report entitled `Justice Undone: Clemency Decisions in the Clinton White House.' The chairman was directed to transmit a copy to the Speaker of the House.
APPENDICES
APPENDIX I- COMMITTEE CORRESPONDENCE
APPENDIX II- COMMITTEE SUBPOENAS
APPENDIX III- MARC RICH AND PINCUS GREEN PARDON PETITION
MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR R. OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. PATSY T. MINK, HON. BERNARD SANDERS, HON. ELEANOR HOLMES NORTON, HON. ELIJAH E. CUMMINGS, HON. DENNIS J. KUCINICH, HON. DANNY K. DAVIS, HON. THOMAS H. ALLEN, HON. JANICE D. SCHAKOWSKY, AND HON. DIANE E. WATSON
On his last day in office, President Clinton issued 140 pardons and 36 commutations. Several were controversial, particularly the pardon of Marc Rich, and prompted criticism from across the political spectrum. Some of the most vocal critics were those who had been strong supporters and often defenders of President Clinton. For example, Sen. Charles Schumer said, `There can be no justification in pardoning a fugitive from justice. Pardoning a fugitive stands our justice system on its head and makes a mockery of it.' 1
[Footnote] Rep. Barney Frank likewise said, `It was a real betrayal by Bill Clinton of all who had been strongly supportive of him to do something this unjustified. It was contemptuous.' 2
[Footnote]
[Footnote 1: U.S. Attorney: Was Clinton Bribed? Feds Hunting for Link Between Rich Pardon and Campaign Contributions, Chicago Sun-Times (Feb. 15, 2001).]
[Footnote 2: E.J. Dionne Jr., And the Gifts that Keep on Giving, Washington Post (Feb. 6, 2001).]
These sentiments were echoed by the Democratic members of this Committee. Rep. Henry Waxman said, `The Rich pardon is bad precedent. It appears to set a double standard for the wealthy and powerful. And it is an end run around the judicial process.' 3
[Footnote] At a Committee hearing on the Marc Rich pardon, Rep. Elijah Cummings expressed the view of many members when he said:
[Footnote 3: House Committee on Government Reform, Hearings on the Controversial Pardon of International Fugitive Marc Rich, 37, 107th Cong., 1st Sess. (Feb. 8, and Mar. 1, 2001) (hereinafter `Pardon Hearings, Day One or Day Two').]
It's one thing to go to trial. It's one thing to stay here and face the music. It's one thing to be found not guilty. It's a whole other thing, in my opinion, when somebody, because they have the money, can go outside the country and evade the system. I tell you it really concerns me because my constituents have a major problem with that, and I do, too. 4
[Footnote]
[Footnote 4: Id. at 164-65.]
Chairman Burton could have chosen to build upon this consensus. He could have conducted a focused and bipartisan inquiry, issued a report that set out the facts for the public, and avoided the partisanship that has hampered this Committee's work over the past five years. 5
[Footnote] Unfortunately, he chose to do the opposite.
[Footnote 5: See Minority Staff Report, House Committee on Government Reform, Unsubstantiated Allegations of Wrongdoing Involving the Clinton Administration (March 2001) (Exhibit 1).]
The Committee's investigation continued more than a year after Republican congressional leaders themselves acknowledged it should have ended. In an interview broadcast nationally on March 10, 2001, House Speaker Dennis Hastert said, `I think, probably from my point of view, about all that information [that] is going to come out, has come out' and `I think this is kind of winding down on its own.' 6
[Footnote] Senator Trent Lott, then Majority Leader, expressed similar sentiments, stating: `I'd be inclined to move on.' 7
[Footnote]
[Footnote 6: Hastert Backs Off Pardon Probe, Chicago Tribune (Mar. 11, 2001); see Letter from Rep. Henry Waxman to Chairman Dan Burton (Mar. 15, 2001) (Exhibit 2).]
[Footnote 7: Hastert Backs Off Pardon Probe, Chicago Tribune (Mar. 11, 2001).]
Rather than wind down the investigation, Chairman Burton chose to expand its scope. What began in January 2001 as an inquiry into the pardon of Marc Rich rapidly multiplied to include dozens of other requests for executive clemency. The majority report states that `the Committee limited its investigation to pardons and commutations where there was no credible explanation for the grant of clemency, and where there was an appearance of impropriety relating to inappropriate access or corruption.' 8
[Footnote] But as reflected in its voluminous report, the majority not only investigated requests for clemency that President Clinton chose to grant, it investigated requests that President Clinton denied. 9
[Footnote] The majority also devoted great attention to requests for clemency that were pondered but never even submitted to the Justice Department or the White House for consideration. 10
[Footnote] It even examined unsuccessful efforts by Roger Clinton, the President's half-brother, to assist a federal inmate in his petition for parole; 11
[Footnote] Roger Clinton's purported role in unsuccessful efforts by the head of an association to obtain the Secretary of Transportation as a speaker for a symposium; 12
[Footnote] and Roger Clinton's apparent acceptance of fees to lobby the Administration to ease Cuban travel restrictions. 13
[Footnote]
[Footnote 8: Majority Report, Introduction, at 3.]
[Footnote 9: For example, the majority devotes an entire chapter of its report to efforts by Roger Clinton to obtain clemency for others, even though none of the people Roger Clinton recommended for clemency ever received it from President Clinton. See Majority Report, Chapter Two, at 709-831.]
[Footnote 10: For example, the majority report devotes great attention to allegations that Roger Clinton participated in a scheme to sell a pardon to Garland Lincecum, a petition for whom was apparently never submitted to the Justice Department or White House. See Majority Report, Chapter Two, at 777-798. These allegations have been denied by Roger Clinton. Swindle is Reported to Use the Name of Roger Clinton, New York Times (June 21, 2001).]
[Footnote 11: Majority Report, Chapter Two, at 731-776.]
[Footnote 12: Id. at 725-31.]
[Footnote 13: Id. at 723-25.]
As part of this far-flung enterprise, Chairman Burton unilaterally issued 153 subpoenas and requests for documents. Of these, fewer than one-third included requests for records relating to the pardon of Marc Rich. The remainder focused on members of President Clinton's family. Seventy-five related to Roger Clinton, twenty-three related to Hugh Rodham, and eight related to Tony Rodham. In response to these requests for documents, private parties and government agencies produced nearly 25,000 pages of documents.
In the end, the majority's investigation sheds little new light. It is primarily a collection of unsupported and irresponsible statements. The majority report repeatedly suggests that corruption by President Clinton or his Administration may explain the Rich pardon. For example, the majority states that notes of a conversation between President Clinton and former Israeli Prime Minister Ehud Barak `raise[] the possibility that either Barak or Clinton acted on the Rich matter because of some promise of future financial return.' 14
[Footnote] And the majority accuses President Clinton of making `false and misleading statements.' 15
[Footnote]
[Footnote 14: Majority Report, Executive Summary, at 6.]
[Footnote 15: Majority Report, Chapter One, at 258.]
The majority also makes serious allegations of wrongdoing against other Administration officials. Most notably, the majority accuses Deputy Attorney General Eric Holder of deliberately cutting out other Justice Department officials in an effort to assist with the Rich petition. 16
[Footnote] It suggests, moreover, that Mr. Holder did this because he believed Jack Quinn could help him become Attorney General in a possible Gore Administration. 17
[Footnote]
[Footnote 16: Id. at 213.]
[Footnote 17: Id. at 214.]
There is a critical difference, however, between bad judgment and the corruption the majority hints at--but never establishes--in its report. The Rich pardon is indisputably a case of bad judgment. As wealthy fugitives, Marc Rich and his associate Pincus Green did not deserve the pardons they received from President Clinton. But it is equally evident that the sprawling record assembled by the Committee does not support the allegation that President Clinton or any other Administration official was bribed or otherwise corrupted.
Early in the investigation, former White House Chief of Staff John Podesta, former White House Counsel Beth Nolan, and former Deputy White House Counsel Bruce Lindsey appeared before the Committee to explain the decision-making behind the Rich pardon. Each of these eyewitnesses testified that while they disagreed with the President's decision, they believed that he made a decision based on his evaluation of the merits and had no reason to believe that a quid pro quo or any other improper consideration influenced his exercise of the pardon power. 18
[Footnote] There is nothing in the record before the Committee that contradicts this testimony.
[Footnote 18: E.g., Pardon Hearings, Day Two, at 318, 328, 335, 337.]
In reality, what happened was that in the waning hours of the Administration, the process broke down, and President Clinton and other officials exercised poor judgment. Beth Nolan explained that in late 1999 or early 2000, President Clinton told her that he `wanted to exercise the pardon power more than he had in the past, that he felt he hadn't exercised it fully, and he wanted to be sure that we had a process in place to be sure that pardons moved quickly through the process.' 19
[Footnote] Ms. Nolan communicated the President's instructions to speed up the review process to the Deputy Attorney General and the Justice Department's Pardon Attorney in several meetings beginning in early 2000.
[Footnote 19: Id. at 100.]
As Ms. Nolan testified, however, these efforts produced `no movement.' 20
[Footnote] She testified that by the fall of 2000, the Pardon Attorney had indicated that he would not process any more pardon applications. 21
[Footnote] But despite this development, President Clinton insisted on exercising his prerogative to receive and consider requests for clemency, even up until his last day in office. Under these circumstances, and working against the clock, the White House and Justice Department officials responsible for assisting the President could not and did not conduct a full and appropriate review of every petition.
[Footnote 20: Id. at 102.]
[Footnote 21: Id. at 342.]
The Marc Rich pardon was an outgrowth of this flawed procedure. It was the product of a rushed and one-sided process, and it reflected deeply flawed judgment by the President. It was not, however, the criminal conspiracy that the majority insinuates.
I. UNFOUNDED ALLEGATIONS OF WRONGDOING INVOLVING PRESIDENT CLINTON
Article II, section 2 of the Constitution grants the President `Power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.' The Framers of the Constitution intentionally vested the pardon power in one person who would have sole discretion to make decisions and bear full responsibility for the consequences. 22
[Footnote] In 1788, Alexander Hamilton explained why it should be so:
[Footnote 22: Despite the existence of guidelines on the subject, such as those set out in Title 28 of the Code of Federal Regulations, the clemency power is reserved exclusively to the President under the Constitution. It cannot be constrained by any executive branch regulations or by the judgments of any of the President's subordinates. Indeed, even the majority acknowledges this point. Majority Report, Introduction, at 29. The clemency power also cannot be constrained by Congress. The Supreme Court has made clear that the power `flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress.' Schick v. Reed, 419 U.S. 256, 268 (1974). For this reason, some observers have questioned the power of Congress even to investigate the President's clemency decisions. For example, Stanley Brand, who served as General Counsel to the House of Representatives from 1976 to 1984, opined that the pardon controversy was not a subject `on which legislation could be had' and was therefore a matter outside the bounds of legitimate congressional inquiry. See Stanley M. Brand, A Pardon Probe: It's None of Congress's Business, Washington Post (Feb. 28, 2001).]
Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. . . . As the sense of responsibility is always strongest in proportion as it undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. 23
[Footnote]
[Footnote 23: The Federalist No. 74, at 377 (Alexander Hamilton) (Gary Wills ed., 1982).]
As the person entrusted with the pardon power, President Clinton should bear the full responsibility and the brunt of the criticism for disarray in the clemency review process and for his controversial decisions. This criticism has properly been widespread and vociferous. As one commentator noted, President Clinton's `truly remarkable achievement was in creating a consensus against himself with his pardon of March Rich.' 24
[Footnote]
[Footnote 24: E.J. Dionne Jr., And the Gifts that Keep on Giving, Washington Post (Feb. 6, 2001).]
Unfortunately, as with the Committee's past investigations of the Clinton Administration, the majority's report goes too far. The report does not recite facts and draw reasonable conclusions. Instead, the report intersperses suppositions with facts and draws every possible inference against President Clinton, those who assisted him in making clemency decisions, and individuals who advocated clemency for others. Moreover, the report unfairly questions the motives and integrity of individuals, and makes numerous unsubstantiated allegations of wrongdoing.
The following discussion summarizes some of the major allegations involving President Clinton in the majority report and then compares them to the facts in the record before the Committee.
- ÌAllegation: It is possible that President Clinton `acted on the Rich matter because of some promise of future financial return.' 25
[Footnote]
[Footnote 25: Majority Report, Executive Summary, at 6.]
The Facts: The majority, interpreting a gap in notes of a conversation between President Clinton and former Israeli Prime Minister Ehud Barak, suggests that President Clinton pardoned Marc Rich on the promise of future financial return, a federal felony. The majority report states:
Barak had met with Rich personally, and told Clinton that the Rich pardon `could be important . . . not just financially, but he helped Mossad on more than one case.' Barak's statement raises the possibility that either Barak or Clinton acted on the Rich matter because of some promise of future financial return. 26
[Footnote]
[Footnote 26: Id.]
As the majority report later acknowledges, these typewritten notes specify that there is a gap in the note taking, and the reference may relate to Mr. Rich's past financial support for the State of Israel. 27
[Footnote] The majority has not and cannot cite to any evidence that President Clinton acted on the Rich matter because he expected a financial benefit. The majority's innuendo is irresponsible and contradicted by the overwhelming evidence before the Committee.
[Footnote 27: Majority Report, Chapter One, at 227.]
- ÌAllegation: President Clinton `may be attempting to use former Israeli Prime Minister Ehud Barak's interest in the Rich matter as a cover for his own motivations for granting the Rich pardon.' 28
[Footnote]
[Footnote 28: Id. at 103.]
The Facts: President Clinton, in an op-ed published in the New York Times, explained that one of the reasons he granted Marc Rich a pardon was because former high-ranking Israeli officials and Jewish community leaders had urged the pardon. 29
[Footnote] The majority disputes this explanation and concludes that President Clinton was simply using Prime Minister Barak's interest as pretext. As explanation, the majority states: `An examination of the transcripts of the calls [between President Clinton and Prime Minister Barak] shows that Barak did not make a particularly impassioned plea for Rich.' 30
[Footnote] The majority offers no other support for its unsubstantiated conclusion.
[Footnote 29: See William Jefferson Clinton, My Reasons for the Pardons, New York Times (Feb. 18, 2001).]
[Footnote 30: Majority Report, Chapter One, at 103.]
- ÌAllegation: President Clinton has failed to offer a full accounting of his decision to issue the Marc Rich and Pincus Green pardons. 31
[Footnote]
[Footnote 31: Id. at 105.]
The Facts: With the possible exception of President Gerald Ford, who personally testified before the House Judiciary Committee about his pardon of Richard Nixon, no President has given a more complete accounting of a clemency decision than has President Clinton on his decision to pardon Marc Rich and Pincus Green.
As the majority notes in its report, President Clinton took the extraordinary step of waiving all executive privilege claims with respect to the testimony of former White House officials. 32
[Footnote] He allowed his most senior advisors and lawyers to testify before this Committee, not only with respect to the Rich pardon, but other requests for clemency as well. John Podesta, President Clinton's former Chief of Staff, Beth Nolan, the former Counsel to the President, and Bruce Lindsey, Assistant and Deputy Counsel to the President, all answered detailed questions for more than six and half hours about their deliberative process, confidential internal communications, and personal recommendations to the President. 33
[Footnote] Moreover, President Clinton waived executive privilege and allowed Committee staff to review the raw notes of conversations he had with another head of state, former Prime Minister Ehud Barak. The Committee would never have been able to obtain such detailed information about the clemency decisions without the willing cooperation of President Clinton. 34
[Footnote]
[Footnote 32: Majority Report, Introduction, at 38.]
[Footnote 33: Pardon Hearings, Day Two, at 279-437.]
[Footnote 34: Attempting to contrast the explanation offered by President Clinton, the majority cites with approval a `full accounting' published by President Bush to explain his 1992 pardon of Caspar Weinberger and others involved in the Iran-Contra matter. See Majority Report, Introduction, at 25. President Bush's explanation, however, does little more than identify Mr. Weinberger as `a true American patriot,' note the length of various investigations into the Iran-Contra Affair, and criticize the `criminalization of policy decisions.' See Proclamation 6518, 57 Fed. Reg. 62145 (Dec. 24, 1992). Unlike President Clinton's published explanation, see infra note 35 and accompanying text, President Bush's explanation made no attempt to address the criminal conduct alleged against Mr. Weinberger and gave no substantive explanation as to why he believed a pardon was justified.]
In addition to making his former staff available for interrogation, President Clinton published a written explanation for his pardons of Marc Rich and Pincus Green. 35
[Footnote] He laid out several reasons for the pardons that he understood to be true at the time: (1) He understood that oil companies that had structured transactions like Mr. Rich and Mr. Green had been sued civilly rather than prosecuted criminally; (2) he was told that in 1985, the Energy Department had found in a related case that the manner in which Mr. Rich's companies had accounted for the transactions at issue was proper; (3) two highly regarded tax experts concluded that the companies had adhered to the tax law; (4) the companies had paid approximately $200 million in fines, penalties, and taxes to resolve the case; (5) in 1989, the Justice Department rejected the use of racketeering statutes in tax cases, such as the case against Mr. Rich and Mr. Green; (6) he understood that the Deputy Attorney General was `neutral, leaning for' the pardons; (7) the case was reviewed and advocated by his former White House Counsel Jack Quinn and three distinguished Republican lawyers: Leonard Garment, William Bradford Reynolds, and Lewis Libby; 36
[Footnote] and (8) most importantly, former high-ranking Israeli officials and Jewish community leaders had urged the pardon. 37
[Footnote]
[Footnote 35: William Jefferson Clinton, My Reasons for the Pardons, New York Times (Feb. 18, 2001).]
[Footnote 36: As the majority notes in its report, an initial draft of the statement incorrectly stated that the `applications were reviewed and advocated' by Mr. Garment, Mr. Reynolds, and Mr. Libby. (See Majority Report, Chapter One, at 261). President Clinton's representatives notified the New York Times of the mistake, which corrected the piece in most printed editions and published a correction. (See Editors' Note, New York Times (Feb. 19, 2001).)]
[Footnote 37: William Jefferson Clinton, My Reasons for the Pardons, New York Times (Feb. 18, 2001).]
- ÌAllegation: President Clinton's written explanation for the Marc Rich pardon is `rife with false and misleading statements.' 38
[Footnote]
[Footnote 38: Majority Report, Chapter One, at 258.]
The Facts: In its report, the majority dismisses President Clinton's explanation, reaching the inflammatory conclusion that `it was rife with false and misleading statements' and left the Committee `wondering what the President's true motivations were.' 39
[Footnote] While the majority may legitimately question the merit of President Clinton's decision, its report provides no basis for the claim that his explanation was not creditable.
[Footnote 39: Id. at 258, 262.]
Lawyers not involved in the pardon effort, such as Harvard Law School Professor Alan Dershowitz, supported President Clinton's decision. 40
[Footnote] In addition, one prominent Bush Administration official who testified before the Committee--Lewis `Scooter' Libby--agreed with most of the reasons given by President Clinton for the pardons. 41
[Footnote] Mr. Libby represented Marc Rich before his decision to seek a pardon and now serves as Chief of Staff to Vice President Cheney. Testifying after two former federal prosecutors laid out the strength of their case against Mr. Rich, Mr. Libby flatly stated: `I believe that the Southern District of New York misconstrued the facts and the law, and looking at all of the evidence of the defense he had not violated the tax laws.' 42
[Footnote] Mr. Libby testified, moreover, that if he had been asked to pursue a pardon during his representation of Mr. Rich, he could have put together a strong and defensible case for clemency. 43
[Footnote]
[Footnote 40: Letter from Alan M. Dershowitz to Mike Tirone, Producer, Hardball With Chris Matthews (Jan. 25, 2001) (Exhibit 3).]
[Footnote 41: Pardon Hearings, Day 2, at 477-78.]
[Footnote 42: Id. at 485.]
[Footnote 43: Id. at 522.]
The fact that lawyers like Mr. Libby believe Mr. Rich had a defensible case for a pardon does not make the President's decision right. But it does indicate that it was possible for the President to reach the decision he did without being corrupt or deceptive.
- ÌAllegation: President Clinton `encouraged Roger Clinton to capitalize on their relationship.' 44
[Footnote]
[Footnote 44: Majority Report, Chapter Two, at 709.]
The Facts: In its report, the majority states as a `finding of the Committee' that `President Clinton encouraged Roger Clinton to capitalize on their relationship' and that he `instructed Roger Clinton to use his connections to the Administration to gain financial advantage.' 45
[Footnote] The majority makes similar allegations elsewhere in this chapter. For example, it states:
[Footnote 45: Id.]
Roger Clinton repeatedly treated his relationship to President Clinton as a commodity to be sold to the highest bidder. . . . Roger Clinton's behavior was unseemly at best, but it is even more troubling that the President himself appears to have instigated and encouraged his behavior. 46
[Footnote]
[Footnote 46: Id. at 717.]
The majority's sole basis for this finding is a statement made by a lawyer representing former Arkansas State Senator George Locke. The majority apparently heard this statement from the lawyer, who had purportedly heard it from Mr. Locke. Mr. Locke had purportedly heard it from Roger Clinton. Roger Clinton, in turn, had purportedly heard it from President Clinton. 47
[Footnote] Mr. Locke, on whose credibility the majority primarily relies, had been convicted of cocaine-related charges and served time in prison with Roger Clinton. The unreliability of this triple hearsay should be self-evident.
[Footnote 47: Id. at 709, 719.]
The majority devotes 120 pages to Roger Clinton's apparent efforts to influence various decisions by the President and other executive branch officials. It is telling that the evidence before the Committee shows that he failed in each and every instance to obtain the result that he sought.
II. UNFOUNDED ALLEGATIONS OF WRONGDOING INVOLVING OTHERS
President Clinton is not the only individual who is the target of unsubstantiated allegations in the majority report. The following discussion addresses unsubstantiated allegations involving other individuals.
- ÌAllegation: Deputy Attorney General Eric Holder deliberately assisted Jack Quinn with the Rich petition, 48
[Footnote] worked with Jack Quinn to cut the Justice Department out of the process, 49
[Footnote] and probably did so out of a desire to become Attorney General in a possible Gore Administration. 50
[Footnote]
[Footnote 48: Majority Report, Chapter One, at 213.]
[Footnote 49: Majority Report, Executive Summary, at 6.]
[Footnote 50: Majority Report, Chapter One, at 214.]
The Facts: Deputy Attorney General Eric Holder gave ambiguously worded and ill-considered advice to the White House on the Rich pardon petition without knowing all of the facts and without involving others in the Justice Department. Contrary to the majority's assertions, however, Mr. Holder was never in league with advocates seeking a pardon for Marc Rich and never sought to help them `circumvent' the Justice Department. Moreover, the majority's suggestion that Mr. Holder acted out of a desire to become Attorney General is implausible. 51
[Footnote]
[Footnote 51: The majority also contends that Jack Quinn `circumvented' the Justice Department by limiting his contact on the pardon petition to Eric Holder. This makes no sense, as Mr. Holder served as Deputy Attorney General, the Justice Department official second in rank only to the Attorney General.]
The majority repeatedly exaggerates evidence received by the Committee in an attempt to show a conspiracy between Mr. Holder and Mr. Quinn. For example, the majority suggests that Mr. Holder purposefully steered Marc Rich to Jack Quinn. According to the majority report:
Quinn was hired after a recommendation from Deputy Attorney General Eric Holder. Gershon Kekst, who worked for Marc Rich on the pardon matter, asked Holder for a recommendation of how to settle a criminal matter with the Justice Department. Holder recommended that he hire a Washington lawyer `who knows the process, he comes to me, and we work it out.' Holder then explicitly recommended the hiring of Jack Quinn. 52
[Footnote]
[Footnote 52: Majority Report, Executive Summary, at 3. In its report, the majority attributes the following statement to Mr. Holder as though it was a direct quote: `Holder told Kekst that such a person should `hire a lawyer who knows the process, he comes to me, and we work it out.' Majority Report, Chapter One, at 101. The minority staff notes of Mr. Kekst's interview do not reflect any mention of the words, `he comes to me, and we work it out.' Even if Mr. Kekst did use those or similar words to describe Mr. Holder's statement, his recollection is more than two years old, and he certainly did not purport to remember Mr. Holder's exact words.]
To reach the conclusion that Mr. Holder `recommended' Mr. Quinn to Mr. Kekst, the majority ascribes great significance to a chance social encounter in late 1998 between Mr. Holder and Mr. Kekst, who had never before met. According to Mr. Kekst, he found himself seated next to Mr. Holder at a large corporate event. After Mr. Holder indicated that he `worked at Main Justice,' Mr. Kekst recalled asking him general questions about the system of accountability at the Department of Justice and, in particular, to whom U.S. Attorneys were responsible. Mr. Holder apparently responded that they were accountable to him; that was his job. He recalls asking Mr. Holder what a person would do if he believed he was the victim of an overzealous prosecutor. Mr. Kekst said that Mr. Holder suggested hiring a lawyer in Washington, D.C., who knows the process. He recalled that Mr. Holder then spotted Jack Quinn and said words to the effect of, `There is Jack Quinn, someone like that.' According to Mr. Kekst, Marc Rich's name never came up in the conversation. 53
[Footnote]
[Footnote 53: Joint Interview of Gershon Kekst (March 15, 2001).]
The majority also exaggerates the significance of Mr. Holder's attempt to facilitate a meeting between prosecutors in the Southern District of New York and lawyers representing Mr. Rich. The majority writes that `Holder had worked with Quinn during the previous year to try to force the Southern District of New York to sit down and meet with Quinn about settling the charges against Rich.' 54
[Footnote] The majority goes on to say that `Holder had a basically sympathetic view of the Rich case.' 55
[Footnote] In his hearing testimony, Mr. Holder acknowledged receiving the request from Mr. Quinn and asking a career Justice Department official on his staff to look into the matter. He explained that the prosecutors in New York declined the meeting and said that neither he nor anyone on his staff ever pressed them to have the meeting. 56
[Footnote] Mr. Holder further stated:
[Footnote 54: Majority Report, Chapter One, at 208.]
[Footnote 55: Id.]
[Footnote 56: Pardon Hearings, Day One, at 193.]
We simply deferred to them [the Southern District of New York prosecutors] because it was their case. In candor, if I were making the decision as the U.S. Attorney, I probably would have held a meeting. In my view, the government--and the cause of justice--often gains from hearing about the flaws, real or imagined, cited by defense counsel in a criminal case. But my only goal was to ensure that the request was fully considered. 57
[Footnote]
[Footnote 57: Id.]
The majority has no evidence to support its assertion that Mr. Holder `tried to force' prosecutors to meet with Mr. Quinn or was sympathetic to anything other than Mr. Quinn's effort to set up a meeting with the prosecutors.
The evidence before the Committee also does not prove the majority's accusation that Mr. Holder worked with Mr. Quinn to cut other Justice Department officials out of the pardon review process. In retrospect, it is clear that Mr. Holder should have done more to include other Justice Department officials in the review process. Indeed, Mr. Holder conceded as much during his testimony. 58
[Footnote] This mistake in judgment is not evidence of misconduct.
[Footnote 58: See id. at 192.]
The majority points to a November 18, 2001, e-mail message as proof of a conspiracy between Mr. Holder and Mr. Quinn. The subject line of the message reads, `eric.' 59
[Footnote] The text of the message reads: `spoke to him last evening. he says go straight to wh. also says timing is good. we shd get in soon. will elab when we speak.' 60
[Footnote] Neither Mr. Quinn nor Mr. Holder testified about this message, however. Indeed, as the majority itself acknowledges, it is unclear that `eric' even refers to Eric Holder. 61
[Footnote]
[Footnote 59: Majority Report, Chapter One, at 213; Majority Exhibit 146.]
[Footnote 60: E-mail from Jack Quinn to Kathleen Behan, Arnold & Porter, et al. (Nov. 18, 2000) (Majority Exhibit 146).]
[Footnote 61: See Majority Report, Chapter One, at 213.]
Assuming the e-mail accurately reflects the words of Mr. Holder, it shows that he advised Mr. Quinn to submit the pardon petition directly to the White House. But this is not proof of wrongdoing. As Beth Nolan testified, the Pardon Attorney in the Justice Department had indicated by then that he would not process any more pardon applications, 62
[Footnote] while the President was continuing to accept clemency applications at the White House. 63
[Footnote] Advising Mr. Quinn of these facts is not criminal behavior, and it is consistent with Mr. Holder's expectation that Justice Department officials would be consulted even if Mr. Quinn submitted the petition directly to the White House. 64
[Footnote] It is certainly more plausible than the conspiracy suggested in the majority's report.
[Footnote 62: Pardon Hearings, Day Two, at 342.]
[Footnote 63: See id.]
[Footnote 64: Mr. Holder testified that he believed the Justice Department would have an opportunity to review and consider a pardon petition, even if it was submitted directly to the White House. Pardon Hearings, Day One, at 193. The White House Counsel's office consulted frequently with the Justice Department Pardon Attorney, and did so until the end of the Administration. See, e.g., Pardon Hearings, Day Two, at 355. Indeed, toward the end of the Clinton Administration, Mr. Holder asked that the White House Counsel's office keep his office informed whenever it needed information from the Office of the Pardon Attorney so that his office could keep track. Joint Interview of Meredith Cabe, former Associate Counsel to the President (Mar. 16, 2001). This was normal procedure, as the Deputy Attorney General is the designated Justice Department liaison to the White House. See U.S. Attorney's Manual Sec. 1-2.102(D).]
Finally, the majority suggests that Mr. Holder helped with the Rich petition out of a desire to be appointed Attorney General in a Gore Administration. The majority report states:
At the time when Holder made the decision to assist Quinn, there was still a realistic possibility of Vice President Gore winning the election. As an influential friend of Vice President Gore, Jack Quinn would be in a key position to assist Holder's chances of becoming Attorney General. While this may not have been Holder's sole motivation in aiding Quinn, it was likely a powerful motivation for Holder. 65
[Footnote]
[Footnote 65: Majority Report, Chapter One, at 214.]
This speculation is completely implausible. At the time when it was still possible for Al Gore to be President, the most Mr. Holder did was attempt to facilitate a meeting with prosecutors in New York and talk to Mr. Quinn about submitting the pardon petition directly to the White House. He did nothing to support the Rich petition until he gave an opinion to Beth Nolan on January 19, 2001. This was the last full day of the Clinton Administration, and his chances of becoming Attorney General were nil. As the second ranking official in the Justice Department, Mr. Holder could have given powerful support to the Rich petition long before January 19, while the Presidential election was still in doubt. The evidence before the Committee shows that he did nothing of the sort.
Mr. Holder exercised poor judgment when he told Beth Nolan on January 19 that he was neutral, leaning toward favorable on the Rich petition, if there was a foreign policy benefit to be gained. As he acknowledged, he knew little about the case against Marc Rich. 66
[Footnote] He was not in a position to give any recommendation on the petition, even if there was a foreign policy benefit. Mr. Holder publicly expressed regret about this, testifying that he wished he had ensured the Justice Department was more fully informed and involved in the pardon process. 67
[Footnote] He also acknowledged that if he had known everything about the case that he later came to know, he would not have given his opinion. 68
[Footnote]
[Footnote 66: Pardon Hearings, Day One, at 192.]
[Footnote 67: Id.]
[Footnote 68: Id. at 194-95, 233.]
- ÌAllegation: Jack Quinn and other lawyers representing Marc Rich made arguments that were `false and misleading' 69
[Footnote] and `fraudulent.' 70
[Footnote]
[Footnote 69: Majority Report, Chapter One, at 133.]
[Footnote 70: Id. at 212.]
The Facts: The majority repeatedly and inappropriately disparages the lawyers involved in the Rich pardon effort, accusing them of dishonesty and deception. The majority bases such remarks solely on its disagreement with the legal arguments advanced in the Rich pardon petition.
Mr. Quinn and other lawyers representing Mr. Rich were carrying out their duty of zealous advocacy on behalf of their client. The bar rules of the District of Columbia, which govern the professional conduct of lawyers in this jurisdiction, impose an obligation of diligence and zeal within the bounds of the law. 71
[Footnote] This rule provides that `[a] lawyer shall not intentionally--[f]ail to seek the lawful objectives of a client through reasonably available means' or `prejudice or damage the client during the course of the professional relationship.' 72
[Footnote] A lawyer who fails to adhere to this duty is subject to discipline, including suspension or disbarment from the practice of law.
[Footnote 71: District of Columbia Rule of Professional Responsibility 1.3.]
[Footnote 72: Id.]
President Clinton and members of his staff were well aware that Mr. Quinn was acting as an advocate. Bruce Lindsey even told President Clinton that `he should consider Mr. Quinn in this to be an advocate on one side and not his advisor, and that Jack had a client.' 73
[Footnote] In keeping with his professional responsibilities as a lawyer, Mr. Quinn had an obligation not only to advocate the pardon, but to do so in a manner that would not prejudice his client's interests. He had no obligation to point out the weaknesses in Mr. Rich's case. The responsibility to marshal the full array of facts and arguments against the petition belonged to the government officials involved in the decisional process.
[Footnote 73: Pardon Hearings, Day Two, at 145.]
It is revealing to contrast the majority's treatment of Mr. Quinn, who is a Democratic lawyer, with its treatment of Scooter Libby, a Republican lawyer who also represented Mr. Rich. The majority castigates Mr. Quinn for his representation of Mr. Rich and contends that he made fraudulent arguments. 74
[Footnote] Mr. Libby is hardly mentioned, and the majority takes great pains to point out that he didn't work on the pardon effort. 75
[Footnote] But in fact, Mr. Libby represented Mr. Rich far longer than did Mr. Quinn, and he instructed Mr. Quinn on the facts of the case and on controversial arguments later used in the Rich pardon petition. 76
[Footnote] Moreover, Mr. Libby chose to represent Mr. Rich--and to accept enormous legal fees from him--despite his personal conviction that he was a traitor to the United States. 77
[Footnote]
[Footnote 74: See, e.g., Majority Report, Chapter One, at 212.]
[Footnote 75: See id. at 132.]
[Footnote 76: See Pardon Hearings, Day One, at 123.]
[Footnote 77: Pardon Hearings, Day Two, at 491.]
- ÌAllegation: When Jack Quinn filed the Marc Rich petition with the White House and contacted White House staff regarding the pardon, he violated ethical rules set out in Executive Order 12834. 78
[Footnote]
[Footnote 78: Majority Report, Chapter One, at 102.]
The Facts: The majority contends that Mr. Quinn violated Executive Order 12834, which prohibits, for a period of five years, a former executive branch employee from lobbying his or her former agency (including the Executive Office of the President). The majority asserts that because Mr. Quinn left the White House in February 1997, his contacts with respect to the Marc Rich pardon were prohibited by the order.
Although the executive order arguably should extend to contacts related to executive clemency, it is not clear that it does so. In fact, Chairman Burton indicated that the Committee was exploring legislation to close the `loophole' in the executive order. 79
[Footnote]
[Footnote 79: House Committee on Government Reform, Committee Meeting (Mar. 14, 2002).]
The executive order identifies six exceptions to the proscribed lobbying activity. The second exception expressly allows `communicating or appearing with regard to a judicial proceeding.' 80
[Footnote] The majority contends that because the clemency power is wielded by the executive, not the legislative branch, it cannot be a judicial proceeding. The majority's interpretation, however, is not supported by the language of the executive order. To fall within the ambit of the exception, Mr. Quinn's efforts needed to be `with regard to' a judicial proceeding. 81
[Footnote] The criminal case pending against Mr. Rich in New York arguably constituted such a judicial proceeding. The President's decision to grant Mr. Rich a pardon resolved the criminal indictment and ended that proceeding. Mr. Quinn's contacts with the White House appear to fall within the exception and to be permissible.
[Footnote 80: Exec. Order 12834, 58 Fed. Reg. 5,911 (1993).]
[Footnote 81: The word `regard' is commonly defined as `to refer or relate to; concern.' See Random House Webster's College Dictionary, 1094 (2nd ed. 1997); American Heritage College Dictionary, 1149 (3rd ed. 1997).]
The majority also asserts that its conclusion is supported by the opinion of a U.S. District Court judge, who found that Mr. Quinn acted as a lobbyist and was not hired because he was a lawyer. 82
[Footnote] The court's opinion in that case, however, related to the attorney-client privilege and work product doctrine, and it did not address the scope of lobbying as it is defined in the executive order. It does not support the majority's contention that Mr. Quinn violated the ethics ban.
[Footnote 82: Majority Report, Chapter One, at 218 (citing In re Grand Jury Subpoenas, No. M11-189 DC (S.D.N.Y. 2001).)]
As the majority notes in its report, White House Counsel Beth Nolan raised the issue of the executive order with Mr. Quinn. 83
[Footnote] Ms. Nolan appropriately asked an associate counsel on her staff to look independently at the question. The associate counsel concurred with Mr. Quinn's interpretation of the rule and concluded that his work was permissible. 84
[Footnote]
[Footnote 83: Majority Report, Chapter One, at 216.]
[Footnote 84: Pardon Hearings, Day Two, at 324.]
- ÌAllegation: It is likely that Jack Quinn attempted to mislead the public and the Committee when he claimed that he did not expect to be paid for his work on the Rich pardon. 85
[Footnote]
[Footnote 85: Majority Report, Chapter One, at 143.]
The Facts: The majority mischaracterizes Jack Quinn's testimony in an effort to show that he lied to the Committee about his compensation from Marc Rich. For example, the majority states: `Quinn has taken the incredible position that he did not expect to be paid for any of his work on the Rich case after he left Arnold & Porter' and `[i]t is impossible to believe that Jack Quinn did his work on the Rich pardon out of the goodness of his heart, on a pro bono basis.' 86
[Footnote] Mr. Quinn never said that he did not expect to be paid for any of his work on the Rich case after he left Arnold & Porter, or that he was working on a pro bono basis. Rather, he said that he discussed the matter with Robert Fink, another lawyer for Marc Rich, and came to the conclusion that he would not be paid additional fees for his work to obtain a pardon. As the majority notes in its own report, Mr. Quinn testified:
[Footnote 86: Majority Report, Chapter One, at 138.]
After leaving Arnold & Porter, I did consider and discuss with Mr. Fink whether we should have a new arrangement. I came to the conclusion that, particularly because of the fact that we were unsuccessful in achieving a resolution of this at the Southern District, and because I didn't think, frankly, there would be that much more additional time in it, and because I believed that the earlier payments had been fair and reasonable, that I would see this through to the end simply on the basis of the fees we had been paid. 87
[Footnote]
[Footnote 87: Pardon Hearings, Day One, at 242.]
In his testimony, Mr. Quinn further said that he had not accepted payments after leaving Arnold & Porter for his work to obtain a pardon, nor would he accept any such payments in the future. 88
[Footnote] Mr. Quinn said, however, that he would accept payment from Mr. Rich to reimburse him for expenses he incurred in connection with the pardon controversy. 89
[Footnote] And he said that he would accept additional fees for services other than for his efforts to win Marc Rich a pardon. He testified:
[Footnote 88: Id. at 242, 266.]
[Footnote 89: Id. at 266.]
Well, look, I don't think it would be fair to ask me to commit never to accept moneys from him. As I've said to you, if I do work that justifies my billing him for it, I will do so. I expect to be reimbursed for the expenses I'm put to in connection this. Those are the only moneys I anticipate receiving from him. 90
[Footnote]
[Footnote 90: Id.]
The majority claims that the testimony of Mr. Fink contradicts Mr. Quinn. As the majority notes in its report, Mr. Fink testified that he believed Mr. Rich and Mr. Quinn would come to a fair fee arrangement that was consistent with his normal fee arrangements and communicated that to Mr. Quinn in November 2000. 91
[Footnote] It does not appear from any of the evidence before the Committee, however, that Mr. Quinn ever concluded an agreement on fees for the pardon effort. Mr. Quinn could have concluded that he would not receive any additional fees for that work.
[Footnote 91: Majority Report, Chapter One, at 142.]
The Committee has no evidence that Mr. Quinn accepted additional fees from Mr. Rich for his efforts to obtain a pardon. Mr. Quinn made no promise that he would not accept fees for work separate from his efforts to obtain a pardon or to reimburse him for expenses he incurred in connection with the pardon scandal. The Committee has no basis upon which to conclude that Mr. Quinn misled the Committee.
- ÌAllegation: Denise Rich's and Beth Dozoretz's contributions, efforts to help with the Marc Rich pardon, and their decision to invoke their Fifth Amendment privilege against self incrimination raise `the indelible appearance of impropriety.' 92
[Footnote]
[Footnote 92: Id. at 181, 186.]
The Facts: In its report, the majority acknowledges that it was unable to substantiate the allegation that Denise Rich or Beth Dozoretz improperly or illegally influenced President Clinton's decision to grant a pardon to Marc Rich. The majority nevertheless states that their actions create `the indelible appearance of impropriety.' 93
[Footnote] The majority bases this conclusion on the political contributions of Ms. Rich and Ms. Dozoretz, their lawful efforts to assist with the Marc Rich pardon effort, and their decision to invoke their constitutional right against self-incrimination before this Committee.
[Footnote 93: Id.]
The testimony of Ms. Rich and Ms. Dozoretz would have helped the Committee determine the truth, and their decision to assert their Fifth Amendment rights was a setback to the Committee's efforts. The majority is wrong, however, to draw adverse inferences about Ms. Rich and Ms. Dozoretz from their assertion of their constitutional privilege. The Supreme Court has repeatedly stated that a witness's assertion of the privilege against self-incrimination does not give rise to an inference of guilt. Calling the privilege `an important advance in the development of our liberty,' the Court has explained that `[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of a crime or commit perjury in claiming the privilege.' 94
[Footnote]
[Footnote 94: Ullmann v. United States, 350 U.S. 422, 426 (1956).]
As the majority acknowledges in its own report, the Committee could have compelled Ms. Rich's and Ms. Dozoretz's testimony by conferring a grant of immunity from prosecution. The majority elected not to pursue that option. The majority should not seek to establish by innuendo allegations of wrongdoing that it could not establish by the evidence.
- ÌAllegation: Marie Ragghianti, the Chief of Staff of the U.S. Parole Commission, hindered an FBI investigation into Roger Clinton's contacts with commissioners and Commission staff and may have been trying to protect Roger Clinton. 95
[Footnote]
[Footnote 95: Majority Report, Chapter Two, at 711, 759.]
The Facts: The majority report devotes over 40 pages to Roger Clinton's unsuccessful efforts to assist a federal inmate, Rosario Gambino, in an application for parole before the U.S. Parole Commission (USPC). 96
[Footnote] The majority also discusses Mr. Gambino's unsuccessful application for executive clemency. 97
[Footnote]
[Footnote 96: Id. at 731-776.]
[Footnote 97: Id. at 773.]
As is detailed in the majority report, Roger Clinton contacted commissioners and staff of the USPC numerous times to discuss Mr. Gambino's request for parole. While Roger Clinton's repeated contacts proved to be a nuisance to these officials, the contacts did not violate any law or regulation. 98
[Footnote] Moreover, U.S. Parole Commission officials were aware of the appearance of improper political influence in its proceedings. Out of an abundance of caution, Commission officials attempted to discontinue further contacts with Roger Clinton. 99
[Footnote] The USPC even created a policy `restrict[ing] the ability of Commission staff from engaging in any continued series of calls or discussions on official matters that are not in the context of an agency proceeding,' which it communicated in writing to Roger Clinton. 100
[Footnote]
[Footnote 98: See Joint Interview of Michael Stover (July, 17, 2001); see also Letter from Elaine J. Mittleman to Chairman Dan Burton (Apr. 3, 2002) (Exhibit 4).]
[Footnote 99: Joint Interview of Michael Stover (July 17, 2001); Joint Interview of Marie Ragghianti (July 27, 2001).]
[Footnote 100: Letter from Marie Ragghianti (Oct. 26, 1998) (Exhibit 5); Joint Interview of Michael Stover (July 17, 2001).]
For reasons that are not entirely clear from the Committee's evidence, the FBI took steps to investigate Roger Clinton's contacts with the USPC. As part of this effort, the FBI proposed a sting operation whereby a Commission employee would set up a meeting with Roger Clinton at a nearby hotel restaurant and introduce Roger Clinton to an FBI agent posing as a USPC official. 101
[Footnote] The FBI also apparently proposed that the Commission employee wear a body wire to record the conversation with Roger Clinton. 102
[Footnote] Marie Ragghianti, the Chief of Staff of the USPC at the time, was uncomfortable with the proposal and rejected it. Ms. Ragghianti explained that the Commission did not conduct meetings in restaurants, and she said that she thought the FBI's proposed arrangements would be unprofessional and would put the commission in bad light. She explained further that the agency could accommodate the FBI in ways other than the proposed sting and maintain professionalism.
[Footnote 101: Joint Interview of Marie Ragghianti (July 27, 2001).]
[Footnote 102: Id.]
After the Commissioners considered the matter, the USPC did permit the FBI to place a hidden microphone under the desk of a USPC employee, who agreed to meet with Roger Clinton. 103
[Footnote] According to this employee, Tom Kowalski, the FBI proposed that he ask leading questions to draw out Roger Clinton, but Mr. Kowalski did not feel comfortable with that approach. 104
[Footnote] Mr. Kowalski recalls that he had a half-hour meeting with Roger Clinton, but Mr. Clinton made no incriminating comments. 105
[Footnote] The FBI's investigation then apparently ended. 106
[Footnote]
[Footnote 103: Joint Interview of Tom Kowalski (July 27, 2001).]
[Footnote 104: Id.]
[Footnote 105: Id.]
[Footnote 106: See Joint Interview of Michael Stover (July 17, 2001).]
In its report, the majority alleges that Ms. Ragghianti hindered the FBI investigation and may have done so to protect Roger Clinton. 107
[Footnote] But the evidence before the Committee shows only that Ms. Ragghianti exercised her judgment on the appropriateness of a proposed sting operation. Although the majority may disagree with her judgment, there is no evidence that her decision was based on factors other than her evaluation of the interests of the USPC. The majority's suggestion that she acted to protect Roger Clinton is unfair speculation.
[Footnote 107: Majority Report, Chapter Two, at 711, 759.]
- ÌAllegation: Hugh Rodham told the White House that First Lady Hillary Rodham Clinton was aware of the clemency petition of Carlos Vignali and that his commutation was `very important to her.' Either the First Lady was aware of the petition and approved of Mr. Rodham's lobbying efforts or Hugh Rodham lied regarding the First Lady's knowledge. 108
[Footnote]
[Footnote 108: Majority Report, Chapter Three, at 1264-65.]
The Facts: The majority alleges that Hugh Rodham told the White House that First Lady Hillary Rodham Clinton was aware of his efforts to lobby for clemency for Carlos Vignali and that his commutation was `very important to her.' The majority then concludes that because both have denied discussing Mr. Vignali's petition, either one or the other lied. 109
[Footnote]
[Footnote 109: See id. at 1678-79.]
The majority bases its contention primarily on one phone message from a former White House staff member. The phone message is an undated, handwritten note on White House stationary that reads:
Hugh says this is very important to him and the First Lady as well as others.
Sheriff Baca from LA is more than happy to speak with you about him but is uncomfortable writing a letter offering his full support. 110
[Footnote]
[Footnote 110: Handwritten note by Dawn Woolen, Assistant to Deputy Counsel to the President Bruce Lindey (Majority Exhibit 22).]
Committee staff also conducted a joint interview of the author of the note, Dawn Woolen, who served as an assistant to Bruce Lindsey in the White House. When asked about this note and what Mr. Rodham told her on the phone, Ms. Woolen responded that she had no independent recollection of the conversation and that she usually paraphrased phone messages. 111
[Footnote] Asked to interpret the meaning of the word `this' in the phrase `this is important,' Ms. Woolen speculated that it meant the message concerning the Vignali commutation. 112
[Footnote]
[Footnote 111: Joint Interview of Dawn Woolen (Sept. 25, 2001).]
[Footnote 112: Id.]
The majority sought to interview Mr. Rodham about the issue. But Mr. Rodham's attorney informed the Committee that Mr. Rodham would not testify because Mr. Rodham was constrained from revealing his client's confidences by the bar rules of the District of Columbia. 113
[Footnote] The majority did not seek to interview Senator Clinton.
[Footnote 113: Letter from Nancy Luque to Chairman Dan Burton (Mar. 14, 2002) (attaching District of Columbia Rule of Professional Responsibility 1.6) (Exhibit 6).]
These fragmentary facts do raise questions about what Mr. Rodham may have said to Ms. Woolen. But they are wholly insufficient to support the definitive conclusions that the majority seeks to draw.
III. CONCLUSION
Despite widespread consensus that the Marc Rich pardon and other last-minute grants of clemency were unjustified, Chairman Burton conducted a far-flung and partisan investigation. The majority report reflects this approach. The report does not recite facts and draw reasonable conclusions. Rather, it mixes facts with suppositions, unfairly questions the motives and integrity of the individuals involved, and makes numerous unsupported allegations of wrongdoing. The Committee's extensive investigation uncovered a clemency process in disarray at the end of the Clinton Administration and poor judgment. The majority's insinuation of corruption and serious wrongdoing in the pardon process, however, is unsubstantiated and wrong. 114
[Footnote]
[Footnote 114: A number of individuals wrote to Chairman Burton to protest the manner in which the majority conducted its investigation and aspects of the majority report. Those which were copied to the minority are attached at Exhibits 4, 6, and 7.]
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Paul E. Kanjorski.
Hon. Patsy T. Mink.
Hon. Bernard Sanders.
Hon. Eleanor Holmes Norton.
Hon. Elijah E. Cummings.
Hon. Hon. Dennis J. Kucinich.
Hon. Danny K. Davis.
Hon. Thomas H. Allen.
Hon. Janice D. Schakowsky.
Hon. Diane E. Watson.
[Exhibits referred to follow:]
ADDITIONAL VIEWS OF HON. DAN BURTON
INTRODUCTION
A number of important events have transpired since the Committee approved the report on March 14, 2002. First, former President Clinton granted an interview to Newsweek magazine in which he purported to address some of the issues discussed in the Committee's report. As discussed below, almost every statement made by former President Clinton is either false or misleading. It remains deeply troubling that the former President is relying on deception and half-truths rather than squarely addressing the numerous questions raised by his eleventh-hour clemency grants.
Also in the month since the approval of the report, a number of parties mentioned in the report, or their counsel, have provided the Committee with letters responding to the report. The Committee received letters from Peter Kadzik, Hugh Rodham, Los Angeles County Sheriff Leroy Baca, and Marie Ragghianti disputing various aspects of the Committee's report pertaining to them. I found all of these complaints uniformly without merit and have responded to them directly. Furthermore, in each case, I have been disturbed by the lengths to which these individuals have gone to distort the record of their involvement in these cases.
The Committee also received documents from Jack Quinn in response to a subpoena issued by the Committee shortly before the report was issued. These documents relate to Quinn's efforts to receive payment from Rich even after he pledged that he would not accept payment for his work on the Rich pardon. The documents indicate that after the Committee's hearings, Quinn and Rich entered into a $300,000 retainer agreement to compensate Quinn for his time and expenses in responding to the various investigations and inquiries into the Rich pardon. However, Quinn withheld additional documents related to other legal work for Rich, asserting attorney-client and work product privileges and claiming that the work was unrelated to the pardon.
The Committee also received a number of critically important documents from Marie Ragghianti, the former Chief of Staff to the U.S. Parole Commission. Committee staff initially asked Ragghianti to provide the Committee with any documents she had about the Clinton-Gambino matter in an interview in July 2001. Ragghianti indicated that she would search her files and provide any documents that she located. Ragghianti provided no records to the Committee for the next eight months. Then, after having her counsel prepare a letter complaining about the Committee's report, she attached a number of documents previously withheld from the Committee. Accordingly, the Committee issued a subpoena to Ragghianti for all of her documents about Roger Clinton or Rosario Gambino, and Ragghianti provided the Committee with relevant documents retained in her personal possession. The documents contained important new facts that bolster the report's conclusions and undermine Ragghianti's criticisms.
I. COMMENTS BY FORMER PRESIDENT CLINTON
After the Committee's report was released, former President Clinton conducted an interview with Newsweek in which he purported to respond to the concerns raised by some of his grants of clemency. The President's comments are noteworthy in that they contain a number of false statements and baseless accusations. The relevant portion of the interview reads as follows:
Question: How low [emotionally] did you go in the months just after you left?
Clinton: I was just angry that after I worked so hard and after all that money had been spent proving that I never did anything wrong for money, that I'd get mugged one more time on the way out the door. People are free to say that they disagreed with this or that part of the decisions I made, but there wasn't a shred of evidence that it had been done for any improper motive. In fact, there is a lot of evidence to the contrary. I thought there was a little bit of a double standard in the way I was treated, to put it mildly. And I still do.
Question: If you had to do it all over again, would you pardon Marc Rich?
Clinton: Probably not, just for the politics. It was terrible politics. It wasn't worth the damage to my reputation. But that doesn't mean the attacks were true. The fact that his ex-wife--I didn't think they got along--was for it and had contributed to my library had nothing to do with it. I did it for three reasons. Number one, the Justice Department said they were no longer opposed and they were really for it. Had I not granted it, it would have been the only one they wanted publicly that [I] didn't grant. Number two, he waived his statute-of-limitations defenses so we can get lots of money from him [in a civil suit, if Rich returns to the United States]. Justice Ginsburg's husband--the tax expert--said he wasn't guilty. And the Justice Department under President Reagan said he was wrongly indicted in the first place. [A claim former Reagan officials deny.] The third thing is, I received a request from the government of Israel. They wanted him and [Jonathan] Pollard, and I considered Pollard an unrepentant spy and I didn't think I could pardon him. And I wanted to do something to support the peace process. Furthermore, [Rich's] main lawyer was Vice President Cheney's chief of staff [Lewis Libby] and they [conservative critics] tried to hide that.
Question: Do you think you were a little more open to the argument, from personal experience, that prosecutors are not infallible?
Clinton: Absolutely, I do. I do think that I was more vulnerable--look, I don't know Marc Rich and wouldn't know him if he walked in the door there. I was very sensitive to prosecutorial abuse because I had seen it. I don't know that anyone is 100 percent aware of his motives. I don't think that's all bad for a president to be sensitive to any kind of abuse of power.
Question: But Rich was a fugitive. . .
Clinton: Look, I'm not justifying the fugitive status. But if we can get a couple of hundred million dollars, whatever it is he allegedly owes, is it in the interests of the United States to recover from him the way we recovered from other people who violated these oil-pricing schemes?
Question: Your brother and brother-in-law were basically selling access to you.
Clinton: I still don't know what the facts are, except that the evidence is I didn't grant anything [my brother] asked me to grant. I had no idea that [my brother-in-law] was involved in those two cases. Had I known it, I would have turned them down. I was just surprised and disappointed.
Question: It wasn't a great [year] for you, was it?
Clinton: Well, Buddy dying was by far the worst thing. 1
[Footnote]
[Footnote 1: Jonathan Alter, Life is Fleeting, Man, NEWSWEEK, Apr. 8, 2002, at 42.]
- President Clinton's interview is so replete with false and misleading statements that it is necessary to respond line-by-line.
- Ì`I was just angry that after I worked so hard and after all that money had been spent proving that I never did anything wrong for money, that I'd get mugged one more time on the way out the door.'
- ÌBy this comment, President Clinton suggests that the investigations into the Rich and Green pardons were a last-minute mugging perpetrated upon him by some sort of right-wing cabal. However, there was a widespread consensus that the Committee's investigation of President Clinton's clemency grants was justified. The following comments from Democratic Members of Congress and mainstream media outlets show that the Committee's investigation was justified and widely supported:
- ÌRepresentative Eleanor Holmes Norton observed at the business meeting at which the report was approved, `[t]he investigation was not only warranted; I believe that the investigation has already served an important purpose. It is impossible for me to believe that any person contemplating running for President of the United States or who gets that office will again participate in the kind of pardon activity that went on at the end of the Clinton Administration.' 2
[Footnote]
[Footnote 2: Business Meeting, Comm. on Govt. Reform, Mar. 14, 2002, at 76.]
- ÌThe New York Times editorialized that `even [the President's] closest Democratic allies, people who stuck by him in other dark hours, are expressing doubts and dismay. As Senator Herb Kohl, a Wisconsin Democrat, put it, `There probably isn't one person across the country today who is familiar with this case who doesn't think that it's a question of power, connection, money.' Clinton said he would be willing to cooperate `with any appropriate inquiry.' That would certainly be helpful. Despite the desire expressed by President Bush and others to close the book on Clinton's presidency, there is still a strong and legitimate interest in getting to the bottom of this insupportable pardon.' 3
[Footnote]
[Footnote 3: A New Front in the Pardon Investigation, N.Y. TIMES, Feb. 16, 2001, at A18.]
- ÌFormer Democratic Mayor Jerry Brown observed, `If you're asking about pardons, the president can give any pardon he wants. That's in the constitution. But that doesn't stop people from looking into it to see was there money exchanged or was there influence . . . that wasn't appropriate. And that's certainly a legitimate subject for investigation.' 4
[Footnote]
[Footnote 4: The O'Reilly Factor (Fox News television broadcast, Jan. 31, 2001).]
- ÌAt a hearing on the Rich pardon, Senator Russell Feingold stated that `I do believe that legitimate questions have been raised about the pardon of Marc Rich, in particular, and for me, as for many Senators and many Americans, suspicions about this pardon arise from the fact that Marc Rich's ex-wife, Denise Rich, was a large donor to the Democratic Party--not just a large donor, a huge donor. . . . [Denise Rich's contributions to the Democratic Party] can't help but raise some questions about this pardon.' 5
[Footnote]
[Footnote 5: `President Clinton's Eleventh Hour Pardons,' Hearing Before the Senate Judiciary Comm., 107th Cong. 13 (Feb. 14, 2001).]
- ÌThe Sunday Herald reported that `die-hard loyalists like James Carville are admitting the inquiries are `legitimate' while Massachusetts Congressman Barney Frank, one of Clinton's fiercest defenders during the Lewinsky scandal is telling anyone who'll listen that he's `through with the Clintons.' 6
[Footnote]
[Footnote 6: Marion McKeone, The Day Hillary Turned Her Back on Bill, SUNDAY HERALD, Feb. 25, 2001, at 17.]
- Ì`People are free to say that they disagreed with this or that part of the decisions I made, but there wasn't a shred of evidence that it had been done for any improper motive. In fact, there is a lot of evidence to the contrary.'
- ÌRather than directly deny wrongdoing and candidly answer questions about his decisions in the Rich case, it seems that the former President is attempting to establish a standard under which he can be criticized only where criminal wrongdoing can be established. Former President Clinton's basic assertion that there was not a `shred of evidence' of improper motive is incorrect. The Marc Rich pardon is replete with evidence that a number of the major actors had improper motives. The first and most obvious piece of evidence is that the four major players in the Marc Rich case--Marc Rich, Pincus Green, Denise Rich, and Beth Dozoretz--have refused to discuss their involvement in the case, with two of them relying on their Fifth Amendment right against self-incrimination. The two people closest to President Clinton who lobbied him on the Rich and Green pardons--Denise Rich and Beth Dozoretz--have refused to testify about their discussions with the President without a grant of prosecutorial immunity. The consistent refusal of key witnesses to answer questions certainly raises concerns about their motives.
- ÌSimilarly, it is unclear what the former President is referring to when he suggests that there is `a lot of evidence to the contrary' that there was improper motive. The clear factual record established by the report demonstrates that there was no reasonable explanation for the Marc Rich and Pincus Green pardons. All of the explanations offered to date by the President are factually inaccurate or totally irrelevant.
- ÌQuestion: `If you had to do it all over again, would you pardon Marc Rich?' Clinton: `Probably not, just for the politics. It was terrible politics. It wasn't worth the damage to my reputation.'
- ÌThis is one of the most shocking statements made by President Clinton. After all of the evidence demonstrating that Marc Rich and Pincus Green were large-scale criminals, fugitives from justice, and traitors to their country, the President can only bring himself to say that he `probably' would not grant the pardons again, `just for the politics,' because it was not `worth the damage to my reputation.' It apparently does not concern the President that he has pardoned two of the largest tax cheats and most wanted international fugitives in U.S. history. It apparently is not a matter of concern that a man who traded oil with (and thus has financially supported) terrorist regimes ranging from Ayatollah Khomeini's Iran to Saddam Hussein's Iraq has escaped any punishment from the U.S. legal system. President Clinton is apparently unconcerned that a man who attempted to renounce his citizenship to escape the law and was described as a `traitor' by his own attorney is now free to return to the United States. President Clinton is apparently not troubled that he has undermined U.S. efforts to apprehend criminals abroad by pardoning two of the FBI's most wanted fugitives.
- ÌThe one thing that does bother President Clinton, however, is the damage to his own reputation. During his terms in office, President Clinton demonstrated time and again his tendency to elevate his own interests above the interests of the United States. Yet, his insistence on discussing the Rich pardon only in terms of its impact on himself still manages to demonstrate a breathtaking level of hubris. Perhaps most important, it apparently is of no consequence to the former President that the Rich and Green pardons send the unambiguous message that there are two separate systems of justice: one for the rich and one for the poor.
- Ì`I did it for three reasons. Number one, the Justice Department said they were no longer opposed and they were really for it. Had I not granted it, it would have been the only one they wanted publicly that [I] didn't grant.'
- ÌThe former President's claim that the `Justice Department' was `really for' the Rich pardon is factually incorrect. Apart from informal contacts with Deputy Attorney General Eric Holder, the Justice Department was never informed that the Rich pardon was even being considered until the middle of the night on January 19-20, 2001, after the decision had been made to grant the pardon. At that point, Associate White House Counsel Meredith Cabe informed Pardon Attorney Roger Adams that Rich and Green were going to receive pardons and asked Adams to conduct an NCIC background check on them. Before that telephone call, only Deputy Attorney General Eric Holder had any knowledge that the Rich pardon was being considered. Holder had known that the Rich pardon was being considered since November 2000 but had failed to inform anyone else in the Justice Department of that fact. None of the relevant components of the Justice Department that would have been able to provide an educated opinion--the prosecutors in the Southern District of New York, the Office of the Pardon Attorney, the FBI, and the U.S. Marshals Service--were ever asked to provide their opinion about the case. Therefore, it is highly misleading to say that the `Justice Department' was for the Rich pardon and completely false to claim that the Justice Department `publicly' supported it.
- ÌEric Holder, of course, did privately inform White House Counsel Beth Nolan that he was `neutral, leaning towards' the Rich pardon. In the context of the unrelenting opposition to the pardon expressed by White House staff, this was effectively a statement of support. However, Holder had never consulted with anyone else at the Justice Department about the Rich pardon, and the mere fact that the Rich case was under consideration for a grant of clemency was kept completely secret until the pardons were granted on January 20, 2001. At no time before or after the pardon did any Justice Department official express public support for the pardon.
- Ì`Number two, he waived his statute-of-limitations defenses so we can get lots of money from him [in a civil suit, if Rich returns to the United States.]'
- ÌAs explained in the report, President Clinton was completely wrong in thinking that he somehow obtained a valuable concession when he asked Jack Quinn to have Rich waive his statute of limitations defenses in exchange for the pardon. Marc Rich did not have a statute of limitations defense to waive. As the relevant statutes make perfectly clear, an individual who has fled the country is not entitled to use the expiration of the statute of limitations as an affirmative defense. In addition, it is highly unlikely that there was ever any civil liability relating to the 1983 charges against Rich and Green personally. Given that their companies already discharged the corporate liability in a 1984 plea agreement, it is even more unlikely that any personal financial liability would remain enforceable today. Finally, Rich has always been willing to pay hundreds of millions of dollars to avoid criminal liability. Rather than winning some concession on behalf of the U.S. government, President Clinton gave Marc Rich exactly what he had wanted since 1983.
- Ì`And the Justice Department under President Reagan said he was wrongly indicted in the first place.'
- ÌThis claim by the former President is a complete fabrication. The Justice Department has never made a statement that even remotely resembles the claim made by President Clinton. The Justice Department consistently defended the Rich and Green indictment during the Reagan, Bush, and Clinton Administrations. While it is not surprising that President Clinton would make false statements to excuse his conduct, it is surprising that he would make claims that are so obviously wrong.
- Ì`The third thing is, I received a request from the government of Israel. They wanted him and [Jonathan] Pollard, and I considered Pollard an unrepentant spy and I didn't think I could pardon him. And I wanted to do something to support the peace process.'
- ÌThis familiar argument is addressed thoroughly in the Committee's report. First, the President has overstated the extent to which the Israeli government was pushing for the Rich pardon. The transcripts of the conversations between President Clinton and Prime Minister Barak in the report make it clear that Barak did not push the President on the Rich issue. More importantly, at no point did Prime Minister Barak suggest that the Rich pardon would have a role in the Middle East peace process. Indeed, there is no indication that Marc Rich is a significant player in the Middle East peace process or that his pardon has had any role in the process. Even President Clinton's own Middle East envoy, Dennis Ross, stated that Rich `was not a factor in the Middle East talks.' 7
[Footnote]
[Footnote 7: James Risen and Alison Leigh Cowan, U.S. Diplomats Turned Aside Israeli Push on Rich's Behalf, N.Y. TIMES, Feb. 17, 2001, at A1.]
- Ì`Furthermore, [Rich's] main lawyer was Vice President Cheney's chief of staff [Lewis Libby] and they [conservative critics] tried to hide that.'
- ÌIt is true that Libby represented Marc Rich before he sought a pardon. However, it is telling that Clinton attempts to shift the focus to Libby given that his own White House Counsel, Jack Quinn, was so deeply involved in the pardon effort. Certainly, Libby's work on the Rich case raises none of the concerns raised by Jack Quinn's representation. After all, it was Jack Quinn, not Lewis Libby, who lobbied his former subordinates in the White House counsel's office on behalf of Marc Rich. It was Jack Quinn, not Lewis Libby, who likely violated ethical standards by lobbying his former colleagues. Finally, it was Jack Quinn, not Lewis Libby, who obtained the pardons for Marc Rich and Pincus Green.
- ÌMoreover, President Clinton's claim that anyone tried to `hide' Libby's representation of Rich is nonsense. Libby voluntarily testified before the Committee and answered every question put to him. If anything, former President Clinton has repeatedly attempted to distort Libby's representation of Marc Rich. When he wrote his infamous column defending the Rich pardon, President Clinton initially wrote that `the [pardon] applications were reviewed and advocated' by three prominent Republican attorneys: Leonard Garment, William Bradford Reynolds, and Lewis Libby. 8
[Footnote] This claim was completely false, as Libby, Garment, and Reynolds had absolutely no involvement in the pardon effort and had never reviewed, much less advocated, the Rich pardon. The President's staff corrected the column so that later editions of the New York Times stated that Libby, Garment, and Reynolds had `reviewed and advocated' the `case for the pardons.' 9
[Footnote] Even the corrected version of the former President's column was misleading and intentionally overstated their involvement in the Rich case.
[Footnote 8: Editors' Note, N.Y. TIMES, Feb. 19, 2001, at A15.]
[Footnote 9: William J. Clinton, My Reasons for the Pardons, N.Y. TIMES, Feb. 18, 2001.]
- ÌThe former President fails to note that, while Libby deemed Rich a traitor, Libby had absolutely no involvement in the pardon process. This is a crucial distinction that should not be glossed over. Even a traitor is entitled to a legal defense, and therefore, agreeing to represent one is defensible. However, pardoning an unrepentant traitor is indefensible.
- Ì`I was very sensitive to prosecutorial abuse because I had seen it. I don't know that anyone is 100 percent aware of his motives. I don't think that's all bad for a president to be sensitive to any kind of abuse of power.'
- ÌThe former President's suggestion that Marc Rich was a victim of `prosecutorial abuse' is insulting to the numerous career Justice Department prosecutors who worked on the Marc Rich case. Marc Rich and Pincus Green were indicted after a painstaking investigation and after the Department obtained extensive documentary and testimonial evidence against Rich and Green. The Rich and Green case was reviewed by a number of prosecutors at Main Justice and the Southern District of New York, both Republicans and Democrats. President Clinton appointed one of these men to a federal judgeship and another became a high-level official at his Justice Department. It is implausible to think that these dozens of prosecutors engaged in systematic prosecutorial abuse against Marc Rich and Pincus Green for almost twenty years and that only Bill Clinton, over the objections of his own staff, was able to detect it. More important, it is telling that the former President would hear only from friends of Rich or his paid advocates. It displays a contempt for law enforcement and the Central Intelligence Agency that he would not even consider their views before accepting those of Rich's highly paid mouthpieces.
- Ì`Look, I'm not justifying the fugitive status. But if we can get a couple of hundred million dollars, whatever it is he allegedly owes, is it in the interests of the United States to recover from him the way we recovered from other people who violated these oil-pricing schemes?'
- ÌWhen the President of the United States pardons two unrepentant fugitives from justice, it is difficult to comprehend how he is not `justifying the fugitive status.' He is sending the message that the United States is willing to grant the ultimate form of official forgiveness to two people who opted to flee the country and renounce their citizenship rather than face their legal responsibilities in a court of law. A series of experienced prosecutors in three different administrations decided that it was more important to send the message that the United States took its laws seriously than to collect a bit more money in the federal treasury. President Clinton should have followed their lead. Rather than reward billionaire fugitives by pardoning them and unsuccessfully attempting to fine them a `couple of hundred million dollars,' he should have supported the professionals who had been working the case for nearly two decades by soliciting and listening to their advice.
- ÌQuestion: `Your brother and brother-in-law were basically selling access to you.' Clinton: `I still don't know what the facts are, except that the evidence is I didn't grant anything [my brother] asked me to grant.'
- ÌIt is extraordinary that the President would claim that he does not `know what the facts are' regarding the clemency lobbying efforts of Roger Clinton, Hugh Rodham, and Tony Rodham. If it mattered to him, he could have asked his relatives the relevant questions. Moreover, there is substantial evidence that Roger Clinton discussed the cases of Rosario Gambino, Steven Griggs, Jay McKernan, and a number of other individuals with President Clinton. Similarly, there is evidence that Tony Rodham discussed Edgar and Vonna Jo Gregory with the President. President Clinton has never disclosed the content of those discussions, other than to repeat his representation that none of them successfully obtained grants of clemency. However, the President's answer fails to address the many questions about his knowledge and possible approval of Roger Clinton's efforts to sell his access to the President.
- Ì`I had no idea that [my brother-in-law] was involved in those two cases. Had I known it, I would have turned them down. I was just surprised and disappointed.'
- ÌThe President's denials of any knowledge that Hugh Rodham was involved on behalf of Carlos Vignali and Glenn Braswell should be viewed with some skepticism, given the inaccuracy of his other claims in this interview. However, even if the President's statements are true, they fail to address the obvious question of how individuals as undeserving as Vignali and Braswell received clemency. Moreover, the President did not address the refusal of Hugh Rodham to return more than $150,000 to the Vignalis. In February 2001, the President and First Lady demanded that Hugh Rodham return the $434,000 he was paid by Vignali and Braswell. Yet, Rodham returned only $280,000, keeping $154,000 of these fees.
II. COMMENTS BY INDIVIDUALS NAMED IN THE REPORT
A. Comments by Marc Rich attorney Peter Kadzik
On March 13, 2002, Peter Kadzik, an attorney with Dickstein Shapiro Morin & Oshinsky, wrote to `correct the factual inaccuracies' in the Committee's report. 10
[Footnote] Specifically, Kadzik took issue with the description of the Committee's efforts to obtain his testimony for the March 1, 2001, hearing regarding the Rich pardon. As described in the report, Kadzik boarded a plane for California despite the fact that the Committee had requested his testimony and, in fact, intended to issue a subpoena for his attendance at the hearing. Kadzik departed for California, apparently believing that the Committee would not be willing to force him to return to testify at the hearing. Kadzik was served a subpoena by a United States Marshal when he exited the plane and returned the same day so that he could testify at the hearing.
[Footnote 10: See Letter from Peter Kadzik, Partner, Dickstein Shapiro Morin & Oshinsky, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Mar. 13, 2002) (Exhibit 1).]
The central claim in Kadzik's letter of March 13, 2002, is that `at no point before I boarded an airplane to California on February 28, 2001, did any member of the Committee's staff inform me or any attorney with my firm that the Committee would subpoena me to attend the hearing.' As I have explained in my response to Kadzik's letter, his claim is utterly false. 11
[Footnote] Between the time that Committee staff received notice on the evening of February 27, 2001, that Kadzik was declining to testify voluntarily and his departure for California at 11:00 a.m. on February 28, 2001, there were at least three separate communications between Committee staff and Kadzik's attorneys. First, Committee staff called his attorneys on the evening of February 27 to inform them that Kadzik would be required to attend the hearing. Then, on the morning of February 28, 2001, one of Kadzik's attorneys informed Committee staff that he was unable to accept service of a subpoena for Kadzik. Then, at 9:29 a.m. on February 28, Committee staff again informed one of Kadzik's attorneys that the Committee was issuing a subpoena for his attendance at the hearing and asked for Kadzik's flight number so that he could be served. It is troubling that Peter Kadzik would make a false assertion that is so easily disproved.
[Footnote 11: See Letter from the Honorable Dan Burton, Chairman, Comm. on Govt. Reform, to Peter Kadzik, Partner, Dickstein Shapiro Morin & Oshinsky (Mar. 15, 2002) (Exhibit 2).]
B. Comments by Hugh Rodham
On March 14, 2002, Nancy Luque, counsel for Hugh Rodham, sent a letter complaining about a number of conclusions in the Committee's report. 12
[Footnote] I have sent a response to Luque which refutes the claims in her letter. 13
[Footnote] Luque's letter makes a number of inaccurate statements and baseless assertions. For example, she objects to the report's conclusion that Rodham extended only `partial cooperation' to the Committee. Yet, Luque acknowledges that Rodham refused to discuss a number of issues relating to the Vignali case with the Committee and refused to participate in an interview with Committee staff. As detailed in my response of April 16, 2002, Luque's other objections are as baseless as her claim that Rodham fully cooperated with the Committee.
[Footnote 12: Letter from Nancy Luque, Partner, Reed Smith, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Mar. 14, 2002) (Exhibit 3).]
[Footnote 13: Letter from the Honorable Dan Burton, Chairman, Comm. on Govt. Reform, to Nancy Luque, Partner, Reed Smith (Apr. 16, 2002) (Exhibit 4).]
C. Comments by former Parole Commission Chief of Staff Marie Ragghianti
On April 3, 2002, Elaine Mittleman, counsel for Marie Ragghianti, wrote the Committee to complain about the way the report portrayed Ragghianti's reaction to Roger Clinton's contacts with the U.S. Parole Commission on behalf of Rosario Gambino and the subsequent FBI investigation. 14
[Footnote] The bulk of the letter consists of quotations from the report which are presented in isolation and labeled conclusory, subjective, or an unwarranted assumption. In their original context, however, these excerpts are sound conclusions amply supported by citations to evidence. I responded extensively to her mischaracterizations in a letter to Mittleman on April 11, 2002. 15
[Footnote]
[Footnote 14: Letter from Elaine J. Mittleman, Counsel for Marie Ragghianti, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Apr. 3, 2002) (Exhibit 5).]
[Footnote 15: Letter from the Honorable Dan Burton, Chairman, Comm. on Govt. Reform, to Elaine J. Mittleman, Counsel for Marie Ragghianti (Apr. 11, 2002) (Exhibit 6).]
The most important factual claim in Mittleman's letter is that the report confuses the chronology of various FBI requests for Parole Commission assistance in its investigation of Roger Clinton. She disputes that the FBI's first request was to have a Parole Commission staff member introduce Roger Clinton to an undercover agent posing as another Commission staff member. In an effort to defend Ragghianti's opposition to this plan, which the report correctly identifies as the FBI's first plan, Mittleman claims that it was actually the FBI's `third or fourth' proposal. She argues that this purported factual error in the report obscures Ragghianti's true and legitimate motives for opposing the plan. Ironically, however, Mittleman attached documents to her letter that undermine her claim and support the report's chronology. 16
[Footnote] Many of the documents attached to Mittleman's letter had never before been produced to the Committee, prompting staff to inquire whether Ragghianti retained other documents in her personal possession relevant to the investigation of the Clinton-Gambino matter. After receiving representations that she did have additional relevant documents, the Committee notified Mittleman that the Committee would issue a subpoena to Ragghianti. Before receiving the subpoena, Ragghianti faxed 113 pages of documents to the Committee, most of which had not been produced by the Parole Commission. Those documents provided important new evidence and are discussed further below in Section IV. Despite requests, neither Mittleman nor Ragghianti has provided a written certification that the 113-page fax contained every document responsive to the subpoena.
[Footnote 16: Id. at 7-8.]
In addition to seeking additional documents from Ragghianti, I posed five questions to her regarding the recently produced documents. 17
[Footnote] The questions were aimed at obtaining information about when Ragghianti first located the documents she recently produced, whether the Parole Commission could have produced the same documents, and why Ragghianti retained these documents in her personal possession after leaving the Commission. Rather than fully cooperate with the Committee by answering the questions candidly and forthrightly, Ragghianti provided a non-responsive submission through her counsel that quarreled with the questions rather than answering them. For example, in reply to the question, `When did you locate the documents responsive to the subpoena,' Mittleman wrote, `[t]his question implies that there was an outstanding document request for the documents responsive to the subpoena.' 18
[Footnote] Of course, regardless of whether the question implies what she claims, the reply does not even approach an answer to the question. Similarly, in response to two other questions about whether the newly produced documents had come from Commission files, Mittleman merely complained that the questions were not explicitly limited to Ragghianti's personal knowledge and did not `identify what files are considered to be `Parole Commission files.' 19
[Footnote] That Ragghianti cannot provide information of which she is unaware is simply an obvious truism that needs no explicit reference. Moreover, `Commission files' are, as anyone can deduce with minimal thought, files that were located in the Parole Commission offices and were produced in the course of Parole Commission business. This sort of hairsplitting appears to be nothing more than a fig leaf to cover Ragghianti's obvious unwillingness to answer the questions posed. Why she is unwilling to cooperate fully with the Committee's investigation is unclear, but it may be related to the reason she was unwilling to cooperate fully with the FBI's investigation, which is discussed further below.
[Footnote 17: Id. at 1-2.]
[Footnote 18: Letter from Elaine J. Mittleman, Counsel for Marie Ragghianti, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform 2-3 (Apr. 15, 2002) (Exhibit 7).]
[Footnote 19: Id.]
D. Comments by Los Angeles County Sheriff Leroy Baca
On April 4, 2002, Steven Madison, counsel for Los Angeles County Sheriff Baca, submitted a lengthy letter complaining about the Committee report. 20
[Footnote] The report took issue with Sheriff Baca's role in the Vignali commutation, finding that he had a close relationship with Horacio Vignali based on Vignali's large financial contributions to Baca's campaigns. This relationship resulted in a conversation between Sheriff Baca and the White House in which he supported the commutation of Carlos Vignali. The report found Sheriff Baca's efforts on behalf of the Vignalis especially troubling because there were numerous law enforcement reports containing allegations that Horacio Vignali was involved in trafficking illegal drugs and, in fact, served as the source of cocaine for his son. The Committee was concerned with Sheriff Baca's failure to conduct any due diligence before he called the White House and his apparent ignorance of the serious allegations against Horacio Vignali.
[Footnote 20: Letter from Steven G. Madison, Partner, Quinn Emanuel Urquhart Oliver & Hedges, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Apr. 4, 2002) (Exhibit 8).]
Sheriff Baca made three main complaints about the report. First, he claimed that Committee procedures were unfair. Second, he claimed that he actually opposed clemency for Carlos Vignali. Third, the Sheriff suggested that he was unable to conduct any due diligence that would have led to the discovery of the allegations against Horacio Vignali. Each of the Sheriff's complaints is without merit, and I have responded to the complaints fully in a letter to Sheriff Baca's attorney. 21
[Footnote]
[Footnote 21: Letter from the Honorable Dan Burton, Chairman, Comm. on Govt. Reform, to Steven G. Madison, Partner, Quinn Emanuel Urquhart Oliver & Hedges (Apr. 12, 2002) (Exhibit 9).]
In my reply to Sheriff Baca, I posed a number of questions regarding his response to the Committee's report. His letter made it appear that the Sheriff somehow obtained certain draft pages of the report, which Committee staff had shared with a California law enforcement official to ensure that the report's discussion of the allegations against Horacio Vignali did not endanger any confidential informants. It appears that his discovery of these draft pages of the report led Sheriff Baca to return the political contributions he received from Horacio Vignali. Among other questions, I asked the Sheriff to explain how he learned that the Committee was going to discuss the allegations against Horacio Vignali in the report and how much of Vignali's money he had returned. Sheriff Baca has refused to answer these questions by the proscribed deadline. Therefore, I must conclude that he is now refusing to cooperate with the Committee's inquiry. I find his refusal to cooperate with a Congressional investigation almost as disturbing as his refusal to accept responsibility for his role in the Vignali clemency matter or his advocacy on behalf of an alleged drug dealer.
E. Public Comments by the Bush White House
While the Committee did not receive a direct response to its report from the Bush White House, a spokeswoman for the White House did provide a statement about it to The New York Times. Anne Womack responded to the report's criticism of the Bush Administration for failing to produce documents related to the Rosario Gambino matter, the release of which former President Clinton did not even seek to block. Womack said that `some unproduced files were highly sensitive and had yet to be formally requested by the Committee.' 22
[Footnote] Anyone familiar with facts in this case would not have made that statement in good faith. The Committee `formally requested' in writing Gambino-related records from the National Archives. On March 8, 2001, the Committee requested `all records relating to any requests for clemency made by . . . Roger Clinton on behalf of any individual.' On June 18, 2001, the Committee requested `all records relating to the consideration of an executive grant of clemency for Rosario Gambino.' Contrary to Womack's claim, there were actually not one but two formal, written requests that covered the documents in question.
[Footnote 22: Alison Leigh Cowan, Panel Says Top Justice Dept. Aide Held Information on Rich's Pardon, N.Y. TIMES, Mar. 13, 2002, at A23.]
Moreover, the National Archives acknowledged these requests in writing. On August 2, 2001, the Archives said--in what it called its `final response' to our June 18th request--that `[p]ursuant to your prior discussions with the White House Counsel's Office, we are not providing four responsive [Gambino-related] documents . . . that contain internal Government deliberations.' It is clear, however, that the requests were legally proper in form and should have been complied with. The Committee requested the records by letter rather than subpoena because a subpoena was unnecessary. Under the Presidential Records Act, the Committee has statutory authority to have access to the records of a previous administration through the National Archives and without a subpoena. 23
[Footnote]
[Footnote 23: 44 U.S.C. Sec. 2205(2)(c).]
III. NEW INFORMATION ABOUT JACK QUINN'S FEE ARRANGEMENTS
The report left unresolved two issues regarding Jack Quinn's financial relationship with Marc Rich: (1) did Quinn expect Rich to pay him for his work on the pardon after leaving Arnold & Porter and (2) did Rich pay Quinn after the pardons were issued. 24
[Footnote] These questions were initially prompted by Jack Quinn's unbelievable claim that he worked on the Rich pardon without any expectation of payment and by the belated production of records that had been withheld from the Committee on claims of attorney-client and work product privileges for over a year. The records were produced in the aftermath of a court decision finding that those privilege claims were invalid. With regard to the first issue, the report detailed several newly produced e-mails indicating that Quinn was negotiating a retainer agreement with Marc Rich just before he began working on the pardon request. However, both Jack Quinn and Robert Fink refused to be interviewed regarding these e-mails. With regard to the second issue, some of the newly produced e-mails also indicated that, after the Committee's hearings, Quinn sought to enter a retainer agreement with Rich. Given Quinn's statements to the Committee that he would not accept any money from Rich for his work on the pardon effort, the mention of a post-pardon retainer agreement raised further questions. Once again, however, Quinn refused to be interviewed about these e-mails.
[Footnote 24: See generally, Chapter One, Section II.D., `Quinn's Fee Arrangements.']
Since Quinn refused requests for a voluntary interview, the Committee issued a document subpoena to him on March 6, 2002, in an attempt to obtain some clarification of his financial arrangements with Marc Rich. On April 15, 2002, Quinn's attorneys produced a set of responsive documents and also provided a log of documents being withheld on claims of attorney work product and attorney-client privileges. 25
[Footnote] All of the withheld documents are described as `Privileged communication concerning work for Marc Rich unrelated to efforts to obtain Pardon.' 26
[Footnote] It appears, therefore, that Quinn is engaged in additional legal work for Rich on other matters. Obviously, however, due to the assertions of privilege and Quinn's refusal to be interviewed, the precise nature of that work and the total size of Rich's payments to Quinn remain unknown.
[Footnote 25: Letter from Victoria Toensing, Partner, diGenova & Toensing, to David Kass, Deputy Chief Counsel, Comm. on Govt. Reform (Apr. 15, 2002) (Exhibit 10).]
[Footnote 26: Id.]
The documents that were produced, however, may explain some of the e-mails regarding negotiations to enter a retainer agreement after the Committee's hearings on the Rich matter. Rich and Quinn apparently entered into a retainer and indemnification agreement sometime around March 6, 2001. 27
[Footnote] The agreement called for a payment by Marc Rich of $300,000 to retain Quinn to represent Rich `in connection with legal proceedings arising out of (but not in connection with efforts to secure) his pardon.' 28
[Footnote] Under the terms of the agreement, Quinn provided Rich with monthly invoices detailing his time and expenses due to undertaking `unexpected additional legal work in defense of your pardon' to be drawn against the $300,000 retainer. 29
[Footnote] The agreement also retroactively covered Quinn's time and expenses, dating back to January 22, 2001. For January through March 2001, Quinn billed and received from Rich at least $128,100. 30
[Footnote] Throughout the rest of 2001, Quinn billed another $97,240. 31
[Footnote]
[Footnote 27: Jack Quinn Document Production JQC 00070-71 (Letter from Jack Quinn to Marc Rich (Mar. 6, 2001)) (Exhibit 11).]
[Footnote 28: Id.]
[Footnote 29: Id.]
[Footnote 30: Jack Quinn Document Production (2001 Billing Records for Marc Rich) (Exhibit 12).]
[Footnote 31: Id. at JQC 00107.]
Although these documents provide a slightly better understanding of Quinn's fee arrangements with Rich, they do not explain Quinn's claim to have worked on the Rich pardon on a pro bono basis. Despite the evidence discussed in the report of detailed negotiations on a retainer agreement in the summer of 2000, Quinn refuses to answer any questions about the matter, apparently standing by his earlier claims that no agreement on his compensation was made before the pardons were granted. Moreover, the documents Quinn produced in April 2002 fail to resolve the issues raised by the e-mails regarding retainer discussions in 2000. The documents do explain the terms under which Quinn was reimbursed for his time, legal fees, and expenses incurred in 2001 as a result of the various investigations of the Rich pardon by Congressional committees and a New York grand jury. However, questions remain unanswered about the nature and extent of his other `unrelated' legal work for Rich due to his assertions of attorney-client privilege and his outright refusal to be interviewed by the Committee. Without Quinn's full cooperation, the complete picture of his financial relationship with Marc Rich remains unknown.
IV. NEW EVIDENCE REGARDING MARIE RAGGHIANTI'S EFFORTS TO PROTECT ROGER CLINTON
On April 9, 2002, former U.S. Parole Commission Chief of Staff Marie Ragghianti faxed to the Committee 113 pages of documents that had been in her personal possession since she left the Commission. 32
[Footnote] Most of the documents had not been previously provided to the Committee by the Parole Commission despite the fact that they appear to have been created in the course of Commission business. Therefore, copies should have been retained in Parole Commission files. Many of the documents provide a contemporaneous record of Ragghianti's opinion of the unfolding FBI investigation and thus shed new light on her motivations for opposing to full cooperation with the FBI. As a result, a new picture emerges, one that is less flattering to Ragghianti than the original.
[Footnote 32: Fax from Elaine J. Mittleman, Counsel for Marie Ragghianti, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform (Apr. 9, 2002) (Exhibit 13).]
A. Factual Disputes Resolved by Newly Produced Documents
1. Ragghianti's Knowledge of Roger Clinton's Initial Attempts to Influence the Commission
The newly produced documents resolve two factual disputes. As discussed in my response to Ragghianti's counsel, one of the newly produced documents resolves a conflict between statements to Committee staff by Ragghianti and General Counsel Michael Stover. 33
[Footnote] Stover said he had provided a 1996 memo to Ragghianti about his first and only contact with Roger Clinton. 34
[Footnote] The memo, quoted extensively in the report, illustrated Roger Clinton's crude attempt to exert political pressure on Stover. Roger Clinton was attempting to arrange an improper meeting with a Commissioner to discuss the Gambino case. Clinton pressured Stover to arrange the meeting through repeated references to his brother's authority as President, explaining that President Clinton had suggested that Roger meet with a Commissioner. Stover said he had provided the document to Ragghianti, who had not been employed by the Commission in 1996, in an attempt to inform her of Clinton's past misconduct and dissuade her from meeting with Roger Clinton in the future. Marie Ragghianti, however, denied she had ever seen the memo until her July 2001 interview with Committee staff. 35
[Footnote] Her denial appears to be false, given her own words in a document recently produced to the Committee. The document is a 1998 draft e-mail from Ragghianti to deputy ethics officer Sharon Gervasoni. In it Ragghianti writes, `I suppose you are referring to my statement that I felt that Michael [Stover] had been `gratuitously rude' to Roger [Clinton]--an inference I made based on a memo that I believe Michael S. wrote in a memo [sic] for the file[.]' 36
[Footnote] This statement establishes that Ragghianti had indeed seen the memo before and that it was the basis for her opinion about Stover having been `gratuitously rude' to Clinton. This evidence also contradicts her earlier claim that the basis of her statement about Stover being rude was something Chairman Michael Gaines had told her.
[Footnote 33: Letter from the Honorable Dan Burton, Chairman, Comm. on Govt. Reform, to Elaine J. Mittleman, Counsel for Marie Ragghianti n.1 (Apr. 11, 2002) (Exhibit 6).]
[Footnote 34: Chapter Two, Exhibit 42.]
[Footnote 35: See Chapter Two, n.230 and accompanying text.]
[Footnote 36: Marie Ragghianti Document Production (Draft e-mail from Marie Ragghianti, Chief of Staff, Parole Commission, to Sharon Gervasoni, Deputy Designated Agency Ethics Officer, Parole Commission (Sept. 23, 1998)) (Exhibit 14).]
Ragghianti unequivocally denied she had ever seen the Stover memo. She said she was certain that if she had ever seen it, she would have remembered it. 37
[Footnote] Moreover, absent knowledge of Clinton's prior inappropriate efforts to exert political pressure, it would be somewhat understandable for staff to meet with him like any other member of the public. Accordingly, her denial that she ever saw the memo made the defense of her meetings with Clinton more plausible. Given these newly produced records, however, it appears that she was fully aware of Clinton's prior misconduct and, therefore, should have declined further meetings with him. Additionally, other conflicts between her versions of events and Stover's version of events should now be viewed in a new light, given Ragghianti's diminished credibility.
[Footnote 37: Chapter Two, n.230.]
2. The Chronology of the FBI Requests for Assistance from the Commission
As the report explains, Ragghianti refused to grant the FBI's first request for assistance from the Commission: to have Tom Kowalski introduce Roger Clinton to an undercover agent posing as a Commission staffer at a meeting in a local restaurant. The report criticizes Ragghianti for opposing the undercover agent plan. In her response, Ragghianti's lawyer defended Ragghianti's opposition by claiming that the report had confused the chronology and thus misunderstood Ragghianti's motive. In Ragghianti's version of events, the undercover agent plan was not the FBI's first request but its `third or fourth,' 38
[Footnote] and her motive for opposing it was merely a legitimate concern that the Commissioners had not approved it. Ragghianti claimed she was put in an awkward position. The Commissioners had instructed her not to discuss the FBI's investigation with them any further due to concerns that they might have to recuse themselves from making a decision in the Gambino case. Therefore, according to Ragghianti, when the FBI `revised' its request to include a restaurant meeting and an undercover agent, she could not approve the plan because she could neither seek guidance from the Commissioners nor allow involvement beyond what they had approved.
[Footnote 38: Letter from Elaine J. Mittleman, Counsel for Marie Ragghianti, to the Honorable Dan Burton, Chairman, Comm. on Govt. Reform 13 (Apr. 3, 2002) (Exhibit 5).]
The documents Ragghianti produced, however, contradict nearly every aspect of her story and provide further evidence for the report's contention that the undercover agent plan was the first proposed by FBI. Moreover, the documents also provide new evidence that, in fact, the Commissioners had approved the undercover agent plan. Thus, in opposing it, Ragghianti was not carrying out the will of the Commissioners, but thwarting it. One document contradicting Ragghianti's story was attached to Mittleman's April 3, 2002, letter and is discussed in my reply. 39
[Footnote] Other documents produced on April 9, 2002, also undercut her story. For example, in Ragghianti's typewritten notes of a March 22, 1999, meeting with deputy ethics officer Sharon Gervasoni, she writes:
[Footnote 39: Letter from the Honorable Dan Burton, Chairman, Comm. on Govt. Reform, to Elaine J. Mittleman, Counsel for Marie Ragghianti 7-8 (Apr. 11, 2002) (Exhibit 6).]
I then recounted the events of Fri. afternoon, beginning with [Tom Kowalski's] report that RC had called him again, asking for an interview this week, and Tom's subsequent call to [FBI Special Agent] Jackie Dalrymple, his telling me afterward that they would be setting up a callback (to Roger) on Sat. which would result in a meeting at the Holiday Inn restaurant, Tom's wearing a body bug, etc. I told her what the original scenario had been (& also that I had personally opposed it--but that the [Commissioners] had voted 2 (for)-1 (abstention) that they would not oppose the Bureau's plan for Tom to introduce one of their agents as a member of our legal staff, etc.), and that the original plan did not include Tom's wearing a body bug. I also told her of my concerns that the Commission had not been given good legal advice re: its conduct of the entire affair, especially since [Michael Stover's] & my Fri. conversation with [Chief of Staff to the Deputy Attorney General Kevin Ohlsen and Associate Deputy Attorney General David Margolis] suggested that Margolis saw the Commission's responsibilities as I did, & not as Michael [Stover] did.
* * *
I informed her that since Margolis's perception appeared to match my own, as far as the Commission's right to maintain its normal authority in directing its employee in the conduct of USPC business (without fear of obstruction accusations), I now felt that it was appropriate to instruct Tom that he should conduct any further business with Roger C. as he normally would, and that this did not appear to include a meeting at a local restaurant where he might introduce a Bureau agent as a member of our legal staff. 40
[Footnote]
[Footnote 40: Marie Ragghianti Document Production (Notes of Meeting with Sharon Gervasoni, Mar. 22, 1999) (Exhibit 15) (emphasis added).]
- This document provides further evidence that the FBI's original request was indeed to have an agent pose as a Commission staffer. Moreover, it establishes that the Commissioners had explicitly approved this plan by a vote of two-to-one and that, despite this explicit approval, Ragghianti instructed Commission staffer Tom Kowalski not to assist the FBI by introducing the undercover agent to Roger Clinton. Far from working conscientiously to implement the Commissioners' will as she has claimed, Ragghianti actually worked against it. She rationalized her determination to set aside the Commissioners' decision through a claim that the Commissioners `had not been given good legal advice' by the Commission's General Counsel, Michael Stover. 41
[Footnote] Ragghianti replaced the Commissioners' judgment with her own and vetoed the FBI's original plan, which the Commission had explicitly authorized. Her actions suggest a level of opposition to a legitimate law enforcement inquiry not contemplated in the report. In light of this new evidence, perhaps the report's rather neutral assessment of her motivations (that at best she was not objective) is too generous.
[Footnote 41: Id.]
B. Ragghianti's Attitude Towards the FBI's Investigation of Roger Clinton
In reassessing Ragghianti's motivations, other newly produced documents are also useful in that they provide insight into Ragghianti's state of mind at the time of the FBI investigation. Several of the documents she recently produced contain her candid and contemporaneous thoughts about the unfolding FBI investigation in an emotionally laden, diary-like tone. They contain extraordinary expressions of affinity for Roger Clinton and a desire to inform the White House about the investigation. In one document, Ragghianti writes, `I have felt guilty about not telling the WH, however, from what I've seen, it would be easy to be accused of obstructing justice if I did.' 42
[Footnote] As explained in my response to Ragghianti's attorney, it is disturbing that Ragghianti would not aspire to more than merely avoiding criminal obstruction. This statement illustrates that, remarkably, the only deterrence against her tipping-off the White House was indeed a fear of being held legally accountable if she did.
[Footnote 42: Marie Ragghianti Document Production (Notes for the File, Jan. 14, 1999) (Exhibit 16).]
Ragghianti's counsel has argued that Ragghianti `worked diligently to facilitate the FBI investigation' and that she objected only `to the extent it did not interfere with or violate the Commission's normal conduct of business.' The implication that Ragghianti's opposition to certain FBI requests was measured and limited is contradicted by a recently produced document in which Ragghianti described the circumstances leading to the recording of a conversation between Clinton and Tom Kowalski in Parole Commission offices. Her notes reflect that Ragghianti was against even this plan (a compromise from the FBI's original undercover agent plan). In discussing the FBI's compromise proposal with Tom Kowalski and Sharon Gervasoni, Ragghianti was reluctant to allow any surreptitious recording at all. Rather, she wanted Kowalski to simply place a recorder on the desk in front of Clinton. After being convinced by Kowalski and Gervasoni who made `as strong a case as possible,' she wrote, `finally and agonizingly, I relented[.]' 43
[Footnote] She continued, `I hardly slept that night, and came in Tuesday morning, determined to call Margolis to clarify whether he had meant we should record the interview with RC openly or surreptitiously.' 44
[Footnote] That Ragghianti would believe an open recording of Clinton would be of any benefit whatsoever to the FBI's investigation stretches credulity. According to her notes, Ragghianti did call Margolis, and he convinced her to allow the recording to occur. The argument he made that finally persuaded her, however, provides further insight into her motivations. She wrote:
[Footnote 43: Marie Ragghianti Document Production (Notes of Meeting with Sharon Gervasoni, Mar. 22, 1999) (Exhibit 15).]
[Footnote 44: Id. This document also contains yet another confirmation that the chronology in the report is correct. Ragghianti wrote, `[Michael Stover] had strongly supported the original plan (for Tom to introduce a Bureau agent as a member of our legal staff at a nearby restaurant, etc.)[.]' Id. (emphasis added).]
A recording, [Margolis] said, made it less likely that there would be any misunderstanding. He even said that a recording might be `fairer to RC'--in that it could get the entire matter resolved as soon as possible. (THIS got my attention, and rang true). He went on to say that otherwise, the whole thing `could linger forever--or indefinitely.' And down the road, he said, who knows what may happen?
* * *
However, this discussion with him had persuaded me that I really had no recourse but to allow the recording to proceed, even though it made me very unhappy. 45
[Footnote]
[Footnote 45: Id.]
On the morning the recording was to occur, Ragghianti appears to have interjected herself into the process by coaching Kowalski on how to behave during the meeting. Her objective in doing so appears to have been to prevent any unguarded discussion of the kind the FBI wished to record. Describing her visit to Kowalski's office just before Clinton's scheduled arrival, Ragghianti wrote:
I was disconcerted to find Jackie & Kevin [the FBI agents] in his office, because, as I've already said, I had no idea that they would be monitoring the visit with RC, installing microphones in the ceiling & desk, etc. (I thought Tom would simply place one of our little recorders in his desk drawer.) When I saw them, I was not at all happy, but kept it to myself[.]
I felt that they were waiting for me to leave, and I was waiting for them to leave. But not wanting to do anything hostile, I made a decision to just go ahead & openly tell Tom what I had come to tell him, re: opening his mtg. with RC by saying this would be their last mtg., etc. & then referencing my October letter, etc. I emphasized once more that he should conduct the visit as he would normally conduct any interview, etc.
Jackie then picked up a large black canvas shoulder bag and said I'll go get the car & meet you (Kevin) out front. I went out with her, but stopped at a nearby office, killing time & waiting for Kevin to leave. He didn't. Finally, I saw both Tom & Kevin standing at the window, obviously watching for RC's arrival. At that point, I went back into T's office, and said, `Now remember, Tom--business as usual!' And he answered, in a joking way (tho [sic] I knew he was serious), `Yes M'am!' I then left, and went up to watch & wait for RC. 46
[Footnote]
[Footnote 46: Id.]
- Following Ragghianti's attempt to influence the content of the meeting, she goes on to describe her activities during and after the meeting. After describing Clinton's arrival and her observations of the agents' movements, Ragghianti wrote:
It became increasingly clear that [the agents] must be listening to the RC/Tom meeting from their car, & I was distraught, but helpless. At that point, all I could do was pray.
After a seemingly interminable period of time, I decided to go see what I could see of Tom's office. I was so distraught that I absentmindedly went UP stairs (to the roof) instead of DOWNstairs where Tom's office is. 47
[Footnote]
[Footnote 47: Id.]
- In another document, Ragghianti describes her conversation with Kowalski. She wrote:
Evidently, I arrived immediately following RC's exit, and immediately prior to Kevin & Jackie's return--I said, Tom--has he gone? And he said yes, he just left. I said how'd it go & he said--it went great, he didn't say anything out of line, it was just fine! I said thank God, are you sure? And he said, yes, he just said all the usual things--the things he's said before, and he didn't say anything unusual--was exactly like we thought it'd be. I was greatly relieved. 48
[Footnote]
[Footnote 48: Marie Ragghianti Document Production (Notes of Conversation with Jackie Dalrymple and Kevin O'Connell, Special Agents, Federal Bureau of Investigation, and Tom Kowalski, Case Operations Administrator, Parole Commission, Mar. 23, 1999) (Exhibit 17).]
After the recording, 49
[Footnote] Ragghianti was upset to learn that before the meeting between Kowalski and Clinton, the FBI agents had asked Kowalski to `offer to set up Roger with `one of our analysts' by giving him a telephone number.' 50
[Footnote] Kowalski told Ragghianti he had not done it and that `he figured they were probably annoyed.' 51
[Footnote] Ragghianti wrote, `My private reaction was that I doubt they are as annoyed as I am at hearing that they asked for this, which was certainly not in the sphere of what they knew I had asked of Tom.' 52
[Footnote] Ragghianti's comment demonstrates the detailed level of control she insisted on having over the FBI's requests and her animosity toward any attempt by the agents to enhance the Commission's level of cooperation. Why should this request have annoyed Ragghianti? If her concerns were merely to minimize Commission involvement and insulate the integrity of its decisionmaking function, then nothing about the agents' request should have been annoying at all. Since it would have redirected future contacts with Roger Clinton to the FBI rather than to the Commission, it would actually have alleviated Ragghianti's purported concerns.
[Footnote 49: As noted in the report, the Justice Department refused to produce to the Committee a transcript or a copy of the recorded meeting. However, Tom Kowalski did write a memo summarizing the meeting on the day it occurred, March 23, 1999. Curiously, this memo was not produced to the Committee by the Parole Commission but only recently by Marie Ragghianti. Marie Ragghianti Document Production (Memorandum from Thomas C. Kowalski to File, Mar. 23, 1999) (Exhibit 18).]
[Footnote 50: Marie Ragghianti Document Production (Notes of Meeting with Sharon Gervasoni, Mar. 22, 1999) (Exhibit 15).]
[Footnote 51: Id.]
[Footnote 52: Id.]
These new documents clearly demonstrate not only the factual inaccuracies of Ragghianti's response to the Committee's report but also her unusual predisposition against the FBI's legitimate requests and toward protecting Roger Clinton from the potential consequences of his advocacy for Rosario Gambino.
[The exhibits referred to follow:]