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[Senate Hearing 107-194]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 107-194

               PRESIDENT CLINTON'S ELEVENTH HOUR PARDONS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 14, 2001

                               __________

                           Serial No. J-107-3

                               __________

         Printed for the use of the Committee on the Judiciary

                                _______

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76-344                     WASHINGTON : 2001

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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky            RICHARD J. DURBIN, Illinois
                                     MARIA CANTWELL, Washington
                      Sharon Prost, Chief Counsel
                     Makan Delrahim, Staff Director
         Bruce Cohen, Minority Chief Counsel and Staff Director

                           C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........    11
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    15
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    12
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    10
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    14
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.    18
Schumer, Hon. Charles E., a U.S. Senator from ther State of New 
  York...........................................................    17
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    15
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     7
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina, prepared statement...................................   103

                               WITNESSES

Adams, Roger, Pardon Attorney, Department of Justice, Washington, 
  DC.............................................................    20
Becker, Benton, Professor of Constitutional Law, University of 
  Miami, Pembroke Pines, FL......................................    45
Gormley, Ken, Professor of Constitutional Law, Duquesne 
  University, Pittsburgh, Pennsylvania...........................    48
Holder, Eric H., Jr., Former Deputy Attorney General, Department 
  of Justice, Washington, DC.....................................    29
Quinn, Jack, Attorney, Quinn and Gillespie, Washington, DC.......    65
Schroeder, Christopher H., Professor of Law and Public Policy 
  Studies, Duke University, Durham, NC...........................    57

                         QUESTIONS AND ANSWERS

Responses of Sheryl L. Walter, Acting Assistant Attorney General, 
  Department of Justice, to questions from Senator Feinstein.....    88
Response of Ken Gormley to a question from Senator Leahy.........    88

                       SUBMISSIONS FOR THE RECORD

Hubbard, Joseph D., District Attorney, State of Alabama, 
  Anniston, AL, letter...........................................    97
Interpol, red notice for the arrest of Marc Rich.................    98
Love, Margaret Colgate, Attorney, Washington, DC, statement......    92
Stanish, John R., Attorney, Hammond, IN, statement...............    99

 
               PRESIDENT CLINTON'S ELEVENTH HOUR PARDONS

                              ----------                              

                      WEDNESDAY, FEBRUARY 14, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:07 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Specter, Kyl, DeWine, Sessions, 
McConnell, Leahy, Kohl, Feinstein, Feingold, Schumer, and 
Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. We will begin. Good morning. I would like 
to welcome everyone to today's hearing on the pardons granted 
by President Clinton just before he left office on January 20, 
2001. I would like to thank all of the witnesses who have come 
here today or who have submitted statements for the record.
    The pardons and commutations granted by former President 
Clinton have been the subject of much debate and public 
commentary. I think virtually everyone who has examined them 
has been left with some serious questions as to whether some of 
them were appropriate. Moreover, I think virtually everyone 
agrees that the pardons given to Marc Rich and Pincus Green 
were particularly outrageous, because they were fugitives who 
had never taken responsibility for their actions, or even 
appeared in court to challenge them. In fact, the Justice 
Department had Mr. Rich listed as an international fugitive 
wanted by the FBI.
    Moreover, these pardons allegedly were preceded by lavish 
gifts, political contributions, and pledged donations to the 
Clinton Presidential library.
    As we have come to find out over recent days, Marc Rich and 
Pincus Green were indicted in the largest tax evasion case in 
U.S. history. The record is replete with their stonewall 
tactics and refusals to produce documents responsive to 
numerous grand jury subpoenas. Former prosecutors in the case 
have even described an effort by Mr. Rich and Mr. Green to ship 
subpoenaed documents out of the country in steamer trunks--a 
plan which was thwarted by law enforcement, after a tip allowed 
them to stop the airplane with the documents on it before it 
took off.
    We have also learned that Mr. Rich's ex-wife, Denise Rich, 
has donated large sums of money to the Democratic Party, 
reportedly pledged $450,000 to the Clinton Presidential 
library, and gave expensive furniture to the President at the 
end of his term. These gifts and donations raise obvious 
questions and they deserve an answer.
    Pardons to individuals such as these, and under these 
circumstances, raise serious questions in the public's mind 
about what does go on in the pardon process, how such decisions 
are made, and who can be held accountable. Similar questions 
arose in the summer of 1999 when numerous members of the FALN 
and Los Macheteros were also granted clemency by President 
Clinton. This committee examined the process that led to that 
decision and discovered that, while proponents of the clemency 
were granted meetings with very high-level government 
officials, victims were shut out of the process. The concerns 
of law enforcement were also apparently not heard or were 
disregarded. For example, many violent acts for which the FALN 
had claimed credit were never solved. A co-defendant in one 
case, a man named Victor Gerena, was never brought to justice 
and remained on the FBI's Ten Most Wanted list. Despite this, 
none of the individuals granted clemency was asked to provide 
information to law enforcement on the unsolved cases or the 
whereabouts of Gerena.
    As pointed out by a Washington Post editorial on Monday, 
there are legitimate questions about some of the last-minute 
pardons, including the Rich and Green pardons, that ``warrant a 
full accounting.'' The Post suggests that President Clinton 
should volunteer a full explanation. I agree. I am one of those 
who believes that the President's pardon power under the 
Constitution is absolute, and there is nothing we can do to 
change what has happened in these particular cases. That being 
said, I also believe that there is a need in the public 
interest to have a full explanation of what has gone on so that 
if there are any improprieties, they will never happen again. 
There are many appropriate ways President Clinton could do 
that, in a variety of settings, that would respect the office 
he used to hold, as well as to help the public understand what 
has happened.
    Our focus at today's hearing will be process. Today we will 
continue the earlier examination of the pardon process we began 
during the FALN controversy and examine the role--or lack of 
role--played by the Justice Department. It appears that as many 
as 47 of President Clinton's final grants of clemency did not 
go through the normal process. Many were not investigated or 
vetted by the Justice Department to any significant degree, and 
I think we have seen some of the potential problems that can 
occur when that happens.
    Today's hearing will identify for the American people what 
process is in place and what is the normal role of the Justice 
Department. We will then turn to a few examples of pardons that 
did not go through that process and try to understand how they 
came to be. Finally, we have some distinguished scholars to 
discuss constitutional and other legal issues that could arise 
from legislative efforts to revise the current system which 
members may suggest in the future.
    I have delegated authority to Senator Specter to conduct 
these hearings, and I am very appreciative that he is willing 
to do so. I cannot imagine anybody better on our side to do so 
or anybody better on the Democrat side other than the ranking 
minority member, Senator Leahy, both of whom have been 
prosecutors in the past and both of whom are excellent lawyers.
    So that is what we are going to do, and I want to thank all 
of you again for your attendance today. I look forward to an 
interesting and informative hearing. I am going to turn the 
hearings over to Senator Specter and Senator Leahy. We will now 
turn to Senator Leahy and proceed with the hearings.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. Like you, I will 
have to leave for another event, but let me say this: I think 
today's hearing can perform a very useful and constructive 
service to the American people and to our institutions of 
Government. Of course, it may not. It can illuminate valuable 
lessons for the future, or it could turn into partisan 
recriminations about the past. I would hope and expect that it 
would do the former.
    Now, from what I have read in the press about the pardon of 
Marc Rich, it appears to me to be an occasion on which I 
disagree with a President's use of his constitutional pardon 
power. I have read that this pardon was supported by a number 
of well-respected lawyers, counsels who have staffed Democrats 
and counsels who have staffed Republicans. I understand that in 
addition to Mr. Quinn, who has counseled Democrats, that it 
also had the backing of Lewis Libby, who is currently serving 
as the chief of staff to Vice President Cheney.
    So, President Clinton's former counsel favored it, Vice 
President Cheney's chief of staff favored it, and outgoing 
Prime Minister Ehud Barak favored it. But, frankly, I think 
they are all wrong. I do not happen to favor this pardon, but I 
understand the right of a President to pardon.
    I understand different people have different views on 
different pardons. For example, on the Marc Rich pardon, some 
have said that the prosecution was too aggressive. But one of 
the prosecutors involved in that case, now mayor of the city of 
New York, Rudolph Giuliani, felt that Mr. Rich should not have 
been pardoned. I happen to agree with Mayor Giuliani on this. 
On other things I disagree with him. Mayor Giuliani thinks, for 
example, that one of the great traitors of our lifetime, 
Jonathan Pollard, should be pardoned. And yet, of course, a 
very respected former prosecutor, Joe DiGenova, feels he should 
not be pardoned. Some favor--a pardon for Michael Milken. 
Frankly, I am delighted the President did not grant one.
    But, you see, the point I am making: different people take 
different views. Concerns have been raised about the wisdom of 
President Clinton's judgment in granting some of these pardons, 
especially when they were granted in the waning hours and days 
of his Presidency. Last year, Mr. Chairman, we had a hearing on 
his clemency decisions regarding certain members of the FALN. I 
also disagreed with those pardons.
    Perhaps this hearing will yield insights that will help 
guide the current President and future Presidents in the 
exercise of their constitutional power of clemency. I worked 
last year with my friend Senator Hatch in a bipartisan effort 
to improve the pardon process and to better ensure that crime 
victims and law enforcement views were taken into account. In 
advance of this hearing, I wrote the White House Counsel asking 
what the current White House view is with regard to the pardon 
process. I asked about efforts to establish procedures to make 
sure that the opinions of both crime victims and law 
enforcement are taken into consideration befpre pardon is 
granted.
    President Bush has indicated he has little enthusiasm for 
congressional investigations of President Clinton's final acts 
in office, including the pardons. He told reporters yesterday, 
``I think it is time to move on.''
    I agree, and I am optimistic that we can make progress on a 
number of fronts. Senator Hatch and I introduced significant 
crime legislation yesterday. We expect the Senate today will 
consider another bipartisan effort that he and I have 
introduced updating our intellectual property laws. While I 
rarely predict votes in the Senate, I predict the Senate will 
pass it.
    Now, however, this committee is going to return to the 
subject of the House hearings last week. We will have the 
hearings on the pardon of Marc Rich. But we will also review 
the question of what should be the overall standards for this 
pardon or any other. I applaud Senator Specter in this regard.
    I hope that we will not go into the kind of permanent 
partisan investigations that we saw in the last two Congresses. 
I would like to view President Clinton's pardons as a whole and 
in their historical and constitutional context, not just one or 
two controversial cases. The President does have the pardon 
right, as most Governors do. When I was a prosecutor in 
Vermont, I oftentimes disagreed with the Governor's decision to 
pardon somebody I might have prosecuted, but I respected the 
fact that he had an absolute right to do so.
    The pardon is absolute. It is absolute for Republican 
Presidents. It is absolute for Democratic Presidents. I have 
served with both Republican and Democratic Presidents over the 
last 26 years. President Carter used the power more than 560 
times, President Reagan pardoned more than 400 times, President 
Bush more than 75 times. President Clinton used his pardon 
power about the same as President Reagan. There were instances 
with which I agreed. There were also instances with each of 
these Presidents where I disagreed.
    When the Framers of the Constitution drafted the Pardon 
Clause in 1787, they considered the potential for Presidential 
abuse. They debated whether one or both branches of Congress 
should play a role in the pardoning process. In the end, they 
rejected proposals to check the power through congressional 
oversight because, in the words of Alexander Hamilton, ``one 
man appears to be a more eligible dispenser of the mercy of the 
government than a body of men.'' And, by an large, our National 
experience supports this.
    Chief Justice Rehnquist wrote in a 1993 decision, 
``Clemency is deeply rooted in our Anglo-American tradition of 
law, and is the historic remedy for preventing miscarriages of 
justice where judicial process has been exhausted.''
    We saw such an example last week when Earl Washington was 
released from prison after serving more than 17 years, 
including more than a decade on death row, for a crime he did 
not commit. Virginia Governor James Gilmore pardoned him based 
on DNA evidence that proved his innocence. But had there not 
been an earlier act of clemency by a previous Virginia 
Governor, Earl Washington would have been executed in 1994 for 
a crime we now know he did not commit.
    There are many pardons granted by President Clinton I 
support but, unfortunately, they were overshadowed by the Marc 
Rich pardon. President Clinton made a strong statement by 
commuting the sentences of more than 20 men and women who were 
serving long prison terms for relatively low-level drug 
offenses. Several of them had been victims of domestic abuse. 
In many cases, the sentencing judge and the prosecutor had 
recommended in favor of clemency. These are compelling cases 
for Presidential clemency. I hope at some point we can 
appreciate the injustice being caused by mandatory minimum 
sentences which take away from Federal judges the discretion 
that would allow them to consider the circumstances of the 
cases before them.
    President Clinton commuted the sentence of the first person 
who was sentenced to death under the Federal drug kingpin 
statute, David Ronald Chandler. Why? Because it turns out that 
the star witness was the actual triggerman, Charles Ray 
Jarrell. He now says that he killed Martin Shuler, his brother-
in-law, for family reasons having nothing to do with Chandler. 
Ben Wittes of the Washington Post reviewed this case in 
December 1998. He said, ``The only system that would err on the 
side of executing a man whose chief accuser has recanted is one 
that fundamentally doesn't care whether it executes innocent 
people.'' The President stepped in to grant clemency in the 
right place.
    We should keep in mind the old saying that hard cases make 
bad law. We should not rush to amend the Constitution because 
of a particular pardon decision we may dislike. In fact, we 
should not amend the Constitution because we do not like a 
judicial decision. I have certainly seen a lot of judicial 
decisions I do not like, but I do not believe we should amend 
the Constitution as a result of them.
    I have seen pardons granted by each of the Presidents I 
have served with, other than the current President Bush, who 
has only been in office a few weeks. I have disagreed with some 
of the pardons of each of these Presidents. But I certainly do 
not want to take away from them the ability to pardon. So, 
let's not let public concern over the Marc Rich pardon send us 
off on a venture to try to tinker with our National charter.
    I have a statement, Mr. Chairman, of former Pardon Attorney 
Margaret Love I would like to put in the record. I will also 
put my formal statement in the record.
    Chairman Hatch. Without objection, so ordered.
    [The prepared statement of Senator Leahy follows:]

   Statement of Hon. Patrick Leahy, a U.S. Senator from the State of 
                                Vermont

    Today's hearing may perform useful and constructive service to the 
American people and our institutions of government. Or it may not. 
Today's hearing may illuminate valuable lessons for the future. Or it 
may degenerate into partisan recriminations about the past. I hope it 
will do the former.
    From what I have read about the pardon of Marc Rich, it appears to 
me to be another occasion on which I disagree with a president's use of 
his constitutional pardon power. I have read that it was supported by a 
number of well-respected lawyers, by counsels who have staffed 
Democrats and counsels who have staffed Republicans. I understand that 
in addition to Mr. Quinn, from whom we will hear today, this effort 
also had the backing, for example, of Lewis Libby, who is currently 
serving as the Chief of Staff to Vice President Cheney.
    Concerns have been raised about the wisdom of President Clinton's 
judgment in granting certain of his pardons and about the propriety of 
the process that led to them in the waning days and hours of his 
presidency. Last year we had a hearing on his clemency decisions 
regarding certain members of the FALN. I disagreed with him then, as 
well.
    This hearing may yield insights that will help guide the current 
president and future presidents in the exercise of their constitutional 
power of clemency. I had worked last year with Senator Hatch in a 
bipartisan effort to improve the pardon process and to better ensure 
that crime victims and law enforcement views were taken into account. 
In advance of this hearing, last week I wrote to the White House 
Counsel asking what the current White House view is with regard to the 
pardon process and about those efforts to establish procedures to 
ensure that the views of crime victims and law enforcement officials 
were taken into account when the president considers use of his pardon 
power.
    President Bush indicated that he has little enthusiasm for 
congressional investigations of President Clinton's final acts in 
office, including the pardons. Yesterday he told reporters: ``I think 
it's time to move on.'' I am inclined to agree, and I am optimistic 
that we can make progress on a number of fronts. Yesterday Senator 
Hatch and I introduced a major anti-crime and anti-drug crime package, 
and we expect that the Senate today will be considering another 
bipartisan measure updating our intellectual property laws. Given that 
this Committee has chosen to return to the subject of the House 
hearings last week and to devote today's hearing to the pardon of Marc 
Rich, I trust that there will be no bandying about of unsupported 
accusations or the return to the politics of permanent partisan 
investigation that so tarnished the last two Congresses.
    We need to view President Clinton's pardons as a whole and in their 
historical and constitutional context, not focus exclusively on one or 
two controversial cases. The pardon power lies with the president, just 
as it lies with the governor in each of the states. When I was State's 
Attorney for Chittenden County, I did not always agree when the 
Governor of Vermont used his clemency power, but I understood that it 
was his power to exercise as he saw fit.
    The pardon power is absolute. It is absolute for Republican 
presidents, and it is absolute for Democratic presidents. There were 
numerous exercises of this constitutional power by the Republican and 
Democratic presidents with whom I have served over the last 26 years: 
President Carter used this power more than 560 times, President Reagan 
more than 400 times, and President Bush more than 75 times. They have 
not always been instances with which I agreed. President Clinton used 
his clemency power relatively infrequently by 20' Century standards--
certainly less than President Reagan used it. I have served with five 
presidents, Democrats and Republicans, before the current occupant of 
the White House, and I have agreed with each of them on some of their 
pardon decisions and disagreed with each of them from time to time, but 
I recognized that they are and should be the president's decisions to 
make.
    When the Framers of our Constitution drafted the pardon clause in 
1787, they considered the potential for presidential abuse of the 
pardon power. They debated whether one or both branches of Congress 
should play a role in the pardoning process. In the end, they rejected 
proposals to check the power through congressional oversight because, 
in the words of Alexander Hamilton, ``one man appears to be a more 
eligible dispenser of the mercy of the government than a body of men.'' 
By and large, our national experience supports that view.
    By establishing the pardon power in the Constitution, the Framers 
recognized the important role it plays in our imperfect justice system. 
As Chief Justice Rehnquist wrote in a 1993 decision:
    ``Clemency is deeply rooted in our Anglo-American tradition of law, 
and is the historic remedy for preventing miscarriages of justice where 
judicial process has been exhausted. . . . It is an unalterable fact 
that our judicial system, like the human beings who administer it, is 
fallible. But history is replete with examples of wrongfully convicted 
persons who have been pardoned in the wake of after-discovered evidence 
establishing their innocence.'' (Herrera v. Collins, 506 U.S. 390 
(1993)).
    We saw such an example just this week, when Earl Washington was 
released from prison after serving more than 17 years, including more 
than a decade on death row. Virginia Governor James Gilmore pardoned 
Earl Washington for the crime that sent him to death row based on DNA 
evidence that established his innocence. Were it not for an earlier act 
of clemency by a previous Virginia governor, Earl Washington would have 
been executed in 1994 for a crime that he did not commit.
    In discussing individual pardons, we should not overlook the value 
of the pardon power in the vast majority of largely uncontroversial 
cases in which President Clinton and his predecessors have exercised 
it. Hamilton wrote that the pardon power serves the dual goals of 
humanity and good policy. Sadly, the many pardons that President 
Clinton granted in this spirit have been overshadowed by the 
controversy surrounding the Marc Rich pardon.
    President Clinton made a strong statement by commuting the 
sentences of more than 20 men and women who were serving long prison 
terms for relatively low-level drug offenses. Several of those released 
had been victims of domestic abuse. In many cases, the sentencing judge 
and prosecutor had recommended in favor of clemency. Some of those are 
compelling cases for presidential clemency. I hope that we will look at 
those pardons and begin to appreciate the injustice being caused by 
mandatory minimum sentences by taking away from federal judges the 
discretion that would allow them to consider the circumstances of the 
case before them before imposing sentence.
    President Clinton also commuted the sentence of the first person 
who was sentenced to death under the federal drug kingpin statute. 
David Ronald Chandler was convicted in 1991 of ordering the contract 
killing of a man named Martin Shuler. The Government's star witness was 
the triggerman, Charles Ray Jarrell, who recanted his testimony after 
the trial. Jarrell now claims that he killed Shuler--his brother-in-
law--for family reasons having nothing to do with Chandler. Ben Wittes 
of The Washington Post reviewed the Chandler case in December 1998 and 
concluded as follows:
``I don't pretend to know whether Chandler procured Shuler's death or 
        which of Jarrell's stories is closest to the truth. . . . What 
        I do know is that the only system that would err on the side of 
        executing a man whose chief accuser has recanted is one that 
        fundamentally doesn't care whether it executes innocent people. 
        If the death penalty is even to make a pretense of being 
        something more than monstrous, the criminal justice system has 
        to stop at nothing to avoid wrongful executions.''
    I share these views and commend President Clinton for his 
action in commuting Chandler's sentence. Chandler would have 
been the first person put to death under federal law since 
1963; now he will serve a life term.
    If we view the controversies surrounding certain of 
President Clinton's pardons in the broader context of our 
constitutional scheme, our justice system, history and pardon 
practice, we may well learn valuable lessons for the future. 
But we should keep in mind the old saying that hard cases make 
bad law: Rushing to amend the Constitution because of a 
particular pardon decision that we may dislike is no wiser than 
rushing to amend the Constitution whenever we dislike a 
judicial decision. We should not let public concern over the 
Marc Rich pardon -understandable concern, in my view--send us 
off on yet another reckless adventure to try to tinker with our 
national charter, and so imperil both the separation of powers 
and the ``fail-safe'' mechanisms in our criminal justice system 
that have served this country so well for so long.
    I thank the witnesses for coming today, and look forward to 
hearing their testimony.

    Chairman Hatch. Normally we only have the chairman and the 
ranking member make statements, but we are going to allow 
everybody to make statements today. We will put that statement 
in the record also, Senator.
    So we will turn to Senator Specter, and I will turn the 
gavel over to you, Senator.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. [Presiding.] Thank you very much, Mr. 
Chairman. My thought about these hearings is that they ought to 
look forward to see whether any changes ought to be made on the 
President's power to pardon, and we will seek not to duplicate 
what the House of Representatives has done, but we will be 
taking a look at some specific cases like the Marc Rich case 
and like the Braswell case to see what procedures have been 
followed with a view to considering whether there ought to be 
changes.
    When Walter Mondale was a U.S. Senator, in September 1974, 
he proposed a constitutional amendment which would authorize 
the Congress on a two-thirds vote of the House and a two-thirds 
vote of the Senate to overturn a Presidential pardon. The power 
of the President to pardon is the only power in the 
Constitution which is not subject to some check and balance, 
and that power was derived from the monarch's authority in the 
day when the King could do no wrong. And it was absolute.
    When Senator Mondale introduced his constitutional 
amendment, he quoted Hamilton in the Federalist Papers, 
expressing the concern that there is a method ``in seasons of 
insurrection or rebellion'' for putting a prompt end to 
domestic instability through a prompt offer of a pardon, so the 
use of amnesty in the early days of the Republic, but that 
reason obviously has long since gone.
    I believe we ought not to amend the Constitution lightly, 
but the Founding Fathers provided for amendment procedures for 
updating in accordance with modern needs. If the Mondale 
amendment were to be adopted, it would provide an opportunity 
for congressional legislation as an addendum to establish 
procedures. There are Department of Justice regulations which 
require or call for a number of steps to be taken, but 
President Clinton did not follow those procedures, and, in 
fact, he is not bound to since he has the absolute power. But 
if the Mondale amendment were to be enacted, an addendum could 
be provided so that Congress could set up statutory 
requirements which would require that the FBI be consulted or 
the prosecutor be consulted or victims be consulted so that the 
President would have a full picture on what went on.
    Today we are going to be dealing with the Rich case 
specifically as an illustration of what happened and what might 
be changed. Two hours before President Clinton's term of office 
expired, documents were released to the media, including two 
pages entitled ``An Executive Grant of Clemency,'' and reciting 
that after considering the request for Executive clemency, but 
in many situations there had not been a request. And on many of 
the cases, the Pardon Attorney, who will testify here in a few 
moments, was not given an opportunity to review the matters in 
advance. This document is purportedly signed by William J. 
Clinton on January 20th.
    Then another document in the matter, illustratively, for 
Marc Rich was signed by Roger C. Adams in line with the 
authority which President Clinton had specified in his 
document: ``I hereby designate and direct and empower the 
Pardon Attorney as my representative to sign each grant of 
clemency to the persons named herein. The Pardon Attorney shall 
declare that his action is the act of the President being 
performed at my direction.'' The document signed by Mr. Adams 
is dated January the 20th.
    One question which arises is whether this document was 
issued on January 20th. On the face, it appears that there were 
so many that they could not have been issued on January 20th. 
As of February the 9th, I am advised that many of the papers to 
be issued by the Pardon Attorney had not been issued.
    So there are a number of legal issues which arise. Can the 
President delegate power to someone to be exercised after his 
term ends? Certainly the President had no power to act as 
President after noon on January 20th. A real question exists as 
to whether Mr. Adams could carry on duties after the 20th if 
there is a real issue as to what the Pardon Attorney knew, and 
we are going to inquire into that here.
    There is still one more document, among many others, which 
is a memorandum to the Director of the Office of Public Affairs 
from Roger C. Adams, Pardon Attorney, bearing the initials 
R.C.A., subject, Marc Rich. We will ask Mr. Adams about it. 
``On the above date, President Clinton granted Mr. Rich a full 
and unconditional pardon after completion of sentence.'' Well, 
there was no completion of sentence. There was no sentence. If 
the pardon is conditioned upon completion of sentence and there 
is no sentence, is the pardon valid? What was the President's 
intent? Did he think Marc Rich was to complete a sentence? Did 
he instruct Mr. Adams to say that the pardon would be granted 
upon completion of the sentence? These are all issues to be 
inquired into.
    When the President issued many Executive orders, there was 
a rush to get them into the Federal Register, which you have to 
do before the President's term expires. Those which did not 
make the Federal Register are not valid because the President 
cannot act after noon on January 20th. And there are many 
analogies where delegated authority ceases.
    Technically, when a person writes a check authorizing the 
bank to disburse funds, if that individual dies before the 
check is negotiated, the check is invalid because when a person 
ceases to live, the bank cannot carry out the delegation of 
authority. And it may well be that these pardons, many of them, 
including the pardon to Marc Rich, is invalid. And it may well 
be that if he returns to the United States, he may do so at his 
peril.
    It is well known that the U.S. Attorney for the Southern 
District of New York is not pleased with not being consulted 
and with what was done here. And there is an indictment 
outstanding, and the criminal law says that on an indictment 
you can issue a warrant of arrest. And then a person can 
interpose a pardon as a defense, which might be a way that the 
pardon would be tested.
    Just one other brief comment, following up on what Senator 
Hatch, the chairman, had to say about the President testifying. 
I would not invite the President to testify lightly, and I 
think there needs to be a foundation laid if the President is 
to be invited to testify. You have Ms. Denise Rich pleading the 
privilege against self-incrimination, which raises the 
suggestion of something incriminating having happened, and the 
allegations about key conversations between Ms. Rich and former 
President Clinton. If President Clinton is the only witness 
available, that may create a reason to ask him to testify.
    There has been a suggestion of a grant of immunity which 
has been requested by the House of Representatives. There are 
reports that the United States Attorney for the Southern 
District of New York has initiated a criminal investigation. 
Based on my experience as a prosecutor, I doubt that the 
Justice Department is going to rush to grant immunity to Ms. 
Rich at an early stage if an investigation is to be pursued.
    And then there is the e-mail where President Clinton was 
purported to have talked to the Democratic National Committee, 
which, again, raises questions.
    But we are going to pursue these matters, and we are going 
to do so without partisanship and with a view to the future as 
to whether something should be done to improve the procedures 
for the future.
    Senator Feinstein?

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman. I just 
want to make a couple of remarks on the history of pardons, 
because pardons have a very colorful history in our country. 
The Framers of the Constitution clearly set out that the 
President had an unrestricted constitutional right to pardon 
and to commute. And as one of the Framers noted, ``The only 
restraint on the abuse of the pardon was the risk of damnation 
of the President's fame for all future ages.''
    And in the Federalist Papers, Alexander Hamilton argues 
that at times of national stress, the Executive might have to 
move very fast and, therefore, any legislative impediment would 
slow down a pardon. Hamilton suggested that giving the 
legislature some or all of the pardon power would politicize 
the pardon process.
    In 1795, George Washington issued pardons to leaders of the 
Whiskey Rebellion. Jefferson pardoned deserters from the 
Continental Army and supporters who were convicted under the 
Alien and Sedition Act. Madison pardoned deserters to entice 
soldiers to fight in the War of 1812. During the Civil War, 
Abraham Lincoln gave pardons to Confederate sympathizers in 
return for loyalty oaths to undercut rebellion. Truman gave 
amnesty to individuals who violated the draft during World War 
II. President Nixon gave Jimmy Hoffa a pardon in return for his 
staying out of union management. President Ford pardoned 
President Nixon, and so on and so forth.
    The history of pardons is certainly a colorful history. I 
am one that believes that a President is well advised to 
carefully vet those pardons. And I think most of what has 
happened happened because these pardons, a large number of 
them, 140, were made at the very last moment of a President's 
administration. Some were vetted. Some were not vetted. But I 
certainly believe that a President should vet pardons, not only 
with the Department of Justice, with the line prosecutor, with 
judges, with victims. And we saw that in the Puerto Rican case 
where none of the victims were consulted, and there was broad 
concern about those pardons.
    I have concerns not only about the Rich pardon but with a 
number of the other pardons, and I hope to ask questions about 
them. But the reason I am saying this is because a lot of 
commentary has arisen as to whether the Congress should in some 
way adjust or restrict the President's pardoning authority. I 
do not believe that under the Constitution we would have the 
legislative right to do that, and I do not believe it would be 
well advised to do it.
    The pardon and the commutation power is an absolute 
Executive right under the Constitution of the United States, 
and I think in terms of long-term history this Nation is 
probably well served by leaving it that way.
    Thanks very much.
    Senator Specter. Thank you, Senator Feinstein.
    Senator DeWine?

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Mr. Chairman, thank you very much. Let me 
first congratulate you and congratulate Senator Hatch for 
holding this hearing. It is important that we get the facts out 
and get them out quickly. And I think it is also important, 
after we have the facts out, that we move on as a country. So I 
congratulate you.
    There are some very, very troubling questions that have 
been raised. The more you look into this matter, the more 
troubling it becomes. And so I think it is important for us to 
not only get the facts out today, but also to hear from our 
witnesses, Mr. Adams, for example, in regard to what the normal 
procedure is, how what happened in this particular case or 
cases varied from the norm. I think that will tell us a great 
deal.
    I think, though, that we need to be cautious as a country 
and as a Congress. This is clearly a very, very bad case. But 
we need to be very cautious that we not let--what I would call 
abuse of Presidential discretion, abuse of the pardon process, 
abuse of this power--constitutionally granted to the President 
of the United States cause us to do something that in the long 
run we would regret.
    I do not believe we should change the Constitution. I do 
not believe, quite frankly, that we have the legislative power 
needed to influence future Presidents' decisions concerning the 
use of the pardon.
    As has been pointed out by many people, the pardon power is 
granted by the Constitution. It actually predates the 
Constitution. It is not only a part of our Constitution but it 
is a part of our long, long history, going back to Great 
Britain. And it was a well-understood and well-accepted power 
at the time the Constitution was written.
    So I think we need to be very, very cautious. This country 
has survived other mistakes. It has survived other abuses of 
power. We will certainly survive this grievous abuse of power 
as well. And I think once we have the facts, then we do need to 
move on. But I think the American people have a right to know 
what the facts are. And becuase of this right, and so I again 
congratulate you, Mr. Chairman, for leading us through this 
exercise and leading us through this search for the truth.
    Thanks very much.
    Senator Specter. Thank you, Senator DeWine.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I would like to 
comment first on what I think are the legitimate purposes of 
this hearing. One of those is to review President Clinton's use 
of his constitutional power to grant pardons in the closing day 
of his administration, with an eye toward making 
recommendations about the process by which the Justice 
Department reviews requests that the President exercise his 
power.
    We might also consider proposals for a constitutional 
amendment to limit the President's power in some way, and I 
frankly do not think that a hearing done in the heat of public 
and press attention to a particular controversial pardon 
granted by a single President in the last days of his office is 
really the best way to give a proposed constitutional amendment 
the full scrutiny it deserves. But that certainly is a 
legitimate purpose for a Senate hearing.
    I do not believe, however, that holding a hearing simply to 
add to the public outcry over certain pardons or to launch 
attacks against the President or people in his administration 
is an appropriate use of our oversight authority. And so I am a 
little disappointed at the title of this hearing, ``President 
Clinton's Eleventh Hour Pardons.'' That sounds like a hearing 
designed for public relations effect, not for a balanced and 
forward-looking inquiry about an important constitutional power 
of our Nation's Chief Executive. And I do want to recognize 
that the chairman said, both as I heard on the ``Today'' show 
and at the beginning of the hearing, that his purpose here is 
to look to the future, and I do appreciate that.
    I have concerns about certain of the pardons myself, as I 
will discuss in a moment, but we do not have the power in this 
body to undo President Clinton's pardons, subject of course, to 
any of the points that the chairman was making about technical 
legal issues. And so I hope that this hearing is more than just 
an opportunity for Senators to criticize our last President. I 
do not think hearings presented for that purpose--and, again, I 
hope and assume this will not be such a hearing--are consistent 
with the spirit of cooperation and bipartisanship that we 
should be trying to create in this new evenly divided Senate.
    Now, another purpose of this hearing might be to look at 
those most recent pardons and see if any lessons can be drawn 
concerning our criminal laws in this country. While they have 
not received the attention of the Rich pardon in the media, 20 
of the so-called eleventh hour pardons involve people who 
received harsh mandatory minimum prison sentences for minor, 
non-violent participation in drug-trafficking conspiracies. 
Mandatory minimum sentences impose irreversible, tragic 
consequences on many people in this country, particularly young 
people and their families. So I hope this committee will 
examine that issue at some point this year and perhaps learn 
from the people who were involved in these cases about the 
human dimension of mandatory minimum sentences and whether they 
are actually succeeding in accomplishing what their proponents 
predicted and hoped to accomplish.
    As I look at my friend, Mr. Holder, who I think did a 
superb job in his position, I am reminded of the role of the 
pardon and the clemency power vis-a-vis the awesome power of 
the Federal Government to execute people and the role that 
might play if there are questions of racial disparity, as have 
been suggested, if there are questions perhaps of innocence, if 
there are questions perhaps of inadequate legal representation.
    The notion of a constitutional amendment would allow the 
Congress to override by a super-majority the judgment of a 
President that somebody's life should be spared certainly gives 
me pause.
    Mr. Chairman, while I am not entirely comfortable with the 
potential tone of the hearing, 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. 
According to press reports based on the research of the Center 
for Responsible Politics, Ms. Rich donated $867,000 to 
Democratic Party committees during the Clinton Presidency, and 
most of that was, of course, soft money. She also donated 
$66,300 to individual Democratic candidates in hard money. She 
also contributed $450,000 to President Clinton's Presidential 
library fund. These kinds of numbers can't help but raise some 
questions about this pardon.
    But let me also say that they put a question squarely to 
the members of this committee and the Senate as a whole: Will 
you do what it takes to end this corrupt soft money system that 
allows contributions of this size to the political parties? 
This is a system that is now providing at least an appearance 
of corruption, and not only of our legislative process, not 
only at our political conventions, but now in the very heart of 
our criminal justice system.
    There are members of this committee who have consistently 
filibustered our attempts to ban soft money. I am happy to note 
that Senator Specter has consistently supported reform. But for 
other Senators who have blocked reform, let me point out that 
the filibusters in 1994, 1996, 1997, and particularly in 1998 
and 1999, when the House had passed a campaign finance reform 
bill and prevented us from changing the law, basically allowed 
it to be possible for Denise Rich to make these very large 
contributions and to raise at least the appearance of 
impropriety with regard to something as sacred as the pardon 
power.
    And remember, these same questions are going to be raised, 
and raised legitimately, about anyone that President Bush 
pardons during his term if friends, family, or associates of 
the persons pardoned turn out to be contributors to the Bush 
campaign or to the Republican Party.
    So while there may be nothing that we can do about the 
Clinton eleventh hour pardons, there is something that we very 
clearly can do as a Congress to address the suspicions that 
some pardons have been or will be based on improper influence, 
and that, of course, is to pass campaign finance reform when it 
comes to the floor of this Senate next month.
    Thank you, Mr. Chairman.
    Senator Specter. Thank you, Senator Feingold.
    Senator Kyl?

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman. Just a couple of 
comments.
    First of all, the President obviously had his reasons for 
granting these and other pardons. We are not going to know what 
those reasons are unless the President himself tells us. The 
only other way that we could learn is if there is a criminal 
investigation based upon the information that has come to 
public light so far, information which does indeed raise 
serious questions about the possibility of improper influence.
    But I think that our hearing today needs to focus on two 
other potential actions. One is a constitutional amendment, 
which I find no justification for and, frankly, do not see the 
need for simply because there may have been one abuse of 
discretion in this case.
    There is, however, a second area, and that has to do with 
statutory reform of the procedures within the Justice 
Department which are currently regulated by internal Justice 
Department regulations, which are on the public record. I find 
that, based upon Mr. Holder's testimony, he did not acquit 
himself or the Justice Department well in this case. According 
to his written testimony, he knew that the regular procedures 
had not been followed. He knew why it was important that those 
procedures be followed. As the No. 2 person in the Department 
of Justice, he had a responsibility to see that procedures that 
were important were followed. And in my view--and I will be 
anxious to hear from Mr. Holder here--there is nothing that 
justified his inaction in this case. He was asked by Mr. Quinn, 
according to his testimony, what his position would be on the 
pardon of Mr. Rich, this the day before the Clinton 
administration ended, and according to Mr. Holder's testimony, 
``I told him that although I had no strong opposition based on 
his recitation of the facts, law enforcement in New York would 
strongly oppose it.''
    So he had a sense that this would be a very controversial 
pardon. He understood at that time that technically Mr. Rich 
was not eligible for a pardon under the regulations of the 
Department of Justice. And he also had to know that the failure 
to follow the procedures was a deliberate attempt to avoid 
those procedures because of the likelihood that a pardon would 
not be recommended if the procedures were properly followed.
    My view is that Mr. Holder should have said to Mr. Quinn at 
that moment, You haven't followed the procedures, you need to 
follow the procedures, you know what they are, Mr. Quinn, you 
need to file with the Pardon Attorney, and I am going to call 
the President and warn him against taking action in this case 
because we haven't vetted this request, as is the normal case, 
and that there are dangers in moving ahead with this pardon in 
the absence of such vetting. That would have been the proper 
course of action, and I can find nothing that would excuse Mr. 
Holder from following that course of action.
    So my suggestion here is that we also focus on the 
possibility of legislating a set of procedures which personnel 
of the Department of Justice would have to follow in the event 
they became aware of a potential pardon, procedures that would 
ensure that the pardon request is handled in the proper way. 
That way at least we could avoid the kind of problem that 
occurred here unless a President was blatantly willing to 
proceed against the recommendation of his own Department of 
Justice.
    I will be anxious to get the witnesses' views on whether 
such changes in procedure would be a good idea, at least to 
resolve these kinds of issues in the future.
    Thank you, Mr. Chairman.
    Senator Specter. Thank you, Senator Kyl.
    Senator Durbin?

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Senator Specter. I 
will not defend the pardon of Marc Rich. Marc Rich is hardly a 
sympathetic figure. Charged with a serious violation of law, 
Mr. Rich chose to flee the United States and renounce his 
American citizenship.
    The circumstances surrounding his pardon involving campaign 
contributions certainly raise the appearance of impropriety, if 
not much more. But it is curious to me that the issue of the 
Presidential power to pardon is being considered today by this 
committee with the assumption that this action by former 
President Clinton was the only controversial pardon in recent 
memory.
    Senator Specter has even suggested that former President 
Clinton be called before this committee. Well, in the interest 
of balance, fairness, and in the spirit of bipartisanship, 
should this committee also call former President George Bush to 
explain why, on Christmas Eve, 1992, he issued a pardon for 
former Secretary of Defense Caspar Weinberger and five others 
who had been convicted of lying to Congress in the Iran-contra 
controversy? It is unlikely that former President Bush will be 
called or his actions even scrutinized by this committee.
    It appears that in our investigation of the Presidential 
right to pardon, in looking forward, as Senator Specter 
suggests, we can only reflect on one former President at a 
time. But if we are sincere about amending the Constitution or 
reforming the laws relating to pardons, the committee should 
not confine its inquiry to one action by one President. If this 
hearing is about genuine reform, it should be open and 
balanced. It should consider the use of the Presidential pardon 
historically by Presidents of both political parties. If it is 
about a parting shot at former President Clinton, then I have 
to agree with President George W. Bush: It is time to move on.
    Thank you, Mr. Chairman.
    Senator Specter. Thank you, Senator Durbin.
    Senator Sessions?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    The power to pardon is a legitimate power. It is one that 
ought to be exercised with great care. I believe in the role of 
the Pardon Attorney. We had hearings in the last Congress on 
the Puerto Rican terrorist pardons, which I thought was a 
breathtakingly inexcusable action by the President, and I 
believe I suggested to Mr. Adams that I did not see how he 
could remain in office as a Pardon Attorney, turning down on a 
daily basis people who had committed very minor crimes and who 
lived a life of success and contributed to their community, 
when those convicted of violent crimes who are still serving 
their time in jail, and who never even asked for forgiveness or 
admitted their error are granted pardons.
    I think the pardon power is a historic power that the 
President has, and I do not dispute that. Some say the 
President can make this decision, there is nothing we can do 
about it, so we just have to hush and not say anything about 
it.
    From what I hear today, it is unlikely, perhaps, that we 
will have a constitutional amendment to change it. So what do 
we do when a President on the last day in office abuses his 
power to grant a series of pardons that do not meet any fair 
test of right and justice? Is there no basis for us to question 
it and to ask perhaps maybe we do need a constitutional 
amendment, maybe we do need to look at where we are going?
    I think it is a proper hearing, and I think we should have 
a hearing and discuss it and ask ourselves whether perhaps a 
constitutional amendment, Mr. Chairman, is legitimate. This is 
an unfettered power, a power given with no review whatsoever, 
contrary to almost everything else in our Constitution that has 
checks and balances. So I am not sure it is the right thing, 
but I am certainly not willing to dismiss it if we are going to 
have Presidents on their last day in office just granting 
pardons on these kind of bases.
    And, frankly, the pattern here is troubling. Let's talk 
about the FALN Puerto Rican terrorist group. Fourteen members 
were pardoned. They had claimed responsibility for 130 bombings 
in the United States, and the reign of terror resulted in six 
deaths and permanent maiming of dozens of others. They were 
pardoned without even an admission of wrongdoing on their 
behalf, without even a statement that they were sorry for what 
they had done.
    In this batch, President Clinton in the last minute 
pardoned two members of the Weathermen, a radical terrorist 
organization whose goal was to overthrow American capitalist 
society. The first pardon recipient, Susan Rosenberg, was 
convicted in 1985 for possession of 740 pounds of dynamite, 
including a submachine gun. The second, Linda Sue Evans, was 
convicted in 1983 for her role in a bombing in the Senate 
corridor of the U.S. Capitol Building, as well as for illegally 
buying firearms.
    Marc Rich illegally traded in oil with the terrorist states 
of Iran, Iraq, and Libya. Each of these regimes sponsored 
terrorist attacks on American citizens, including the bombing 
of Pan Am Flight 103 over Lockerbie, Scotland, that we have 
just had a trial about.
    Marc Rich was among the ten most wanted fugitives by the 
United States Marshals Service after he fled the country 
immediately prior to his criminal indictment for tax evasion. 
In addition, Interpol had issued a red notice, which I have 
here and would offer for the record, for the arrest of Marc 
Rich in multiple foreign jurisdictions.
    Senator Specter. It will be admitted without objection.
    Senator Sessions. I was troubled by the William Borders 
pardon. He was convicted in 1981 of taking money to bribe a 
Federal judge who was later impeached, and the evidence against 
Borders was overwhelming and conclusive and recorded by the 
FBI, and the judge was impeached based on the facts arising out 
of this incident.
    So I think this is a series of pardons--and there are some 
others here that I will not go into at this point--that are 
very troubling. The American people have a right to have the 
full facts come out. If we are not going to have a 
constitutional amendment to allow some sort of review of this 
unfettered power, at the very least any President needs to know 
that if he acts irresponsibly, even though he is not seeking 
re-election and does not have the chance to run for re-election 
again, that he would be subject to at least review and 
criticism, if need be, by the Congress.
    So, Mr. Chairman, I wish this matter would go away. 
President Bush says he wishes it would go away. But justice is 
important. How we handle pardons is important. As a Federal 
prosecutor for 15 years, I have signed off on pardons. I have 
objected to pardons and I have not objected to pardons. But I 
have always tried to consider it objectively and fairly. Has 
the person served his time? Was the crime exceptionally 
serious? If it is an exceptionally serious crime, I doubt there 
should ever be a pardon. If the crime was not exceptionally 
serious and the person has lived a healthy life since, 
contributed to his community, the pardon process calls for the 
Pardon Attorney to do an inquiry. The Pardon Attorney then 
calls the Federal prosecutor; they called me when I was one 
many times. They call the victims of the crime. They talk to 
the Federal judge who tried the case. They talk to the 
probation officer who supervised the probation. I must say that 
I never had a pardon request while a person was still in jail. 
I never even saw one come across my desk where the person was 
still in jail or a fugitive and hadn't been tried.
    So you ask all these people, and the President ultimately 
makes the decision, and the Pardon Attorney makes a 
recommendation. Seeing what we have today indicates to me that 
this system is completely out of control. This was an abuse of 
process, and the President deserves to be criticized for it. 
And we need to find out exactly what happened, and I would 
suggest further that I am not sure from what I have seen, based 
on the law of bribery in the United States, that if a person 
takes a thing of value for himself or for another person that 
influences their decision in a matter of their official 
capacity, then that could be a criminal offense. And I think at 
this point, from what I see, the FBI and the United States 
Attorney's Office in New York ought to be looking at this 
matter.
    I feel real strongly about it, Mr. Chairman, and thank you 
for your leadership.
    Senator Specter. Thank you very much, Senator Sessions.
    Senator Schumer?

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman.
    Mr. Chairman, the issues we are examining today are as 
perplexing as they are troubling. To my mind, there can be no 
justification for pardoning a fugitive from justice. It does 
not matter that the fugitive believed the case against him was 
flawed or weak. It does not matter that the fugitive was 
enormously philanthropic. Pardoning a fugitive stands our 
justice system on its head and makes a mockery of it.
    One of the great strengths of our criminal justice system 
is that it is just that: a system. By allowing someone to 
choose to opt out of that system by fleeing and then opt into 
that system to get a pardon perverts the system entirely.
    But where does that leave us going forward? All 100 of us 
in the Senate might disagree with this pardon, but there is a 
whole lot of nothing we can do about it. In the Constitution, 
the President's power to pardon is absolute. The President, in 
the wisdom of the Founding Fathers, can pardon anyone for any 
reason at all. It is a power of the President that is kept in 
check only by the ballot box and the judgment of history. To 
change the Constitution requires careful thought and should not 
be based on one case or one moment in history. And a statutory 
framework requiring the President to follow certain steps 
before issuing a pardon would surely be unconstitutional.
    So I think we should be leery of going overboard and 
launching new rounds of extended congressional investigations 
and hearings that could divert Congress from the work we need 
to accomplish this year. Investigations like this one have a 
way of spinning out of control, and before we know it, summer 
will be here, and we will still be focused on President 
Clinton's pardons. That I think would be a disservice to the 
American people.
    It is legitimate to ask questions that are being asked 
today, but I hope most of my colleagues would agree with 
President Bush that at some point soon we need to move on. If 
there are allegations of criminal wrongdoing, that is something 
for the proper authorities, not this committee, to look at.
    To be sure, the President may have unbounded power to grant 
a pardon, but that does not mean that those seeking pardons can 
do anything they want to get one.
    In the end, I think history will judge some of the pardons 
we have seen in the last 30 years by many Presidents quite 
poorly. But I hope that here in Congress we can start soon to 
focus on the future and not let our quarrels with prior 
administrations mire us in the past.
    Senator Specter. Thank you, Senator Schumer.
    Senator McConnell?

  STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 
                       STATE OF KENTUCKY

    Senator McConnell. I want to commend the committee's 
efforts, and particularly those of Senator Specter, to try to 
determine the rationale behind what appears to be an 
unjustified exercise of the Executive's pardon power. While the 
President alone possesses the power to pardon, it is important 
to remember that he is not personally exempt from Federal laws 
that prohibit the corrupt actions of all Government officials.
    If, for example, President Clinton issued a pardon to Marc 
Rich in exchange for donations to his Presidential library, 
this would indeed be a violation of 18 U.S.C. Section 201(b). 
This statute provides, in relevant part, that any public 
official who accepts anything of value in return for the 
performance of any official act shall be fined or imprisoned 
for not more than 15 years, or both, and may be disqualified 
from holding any office of honor, trust, or profit under the 
United States.
    But while it may be advisable for us to explore the facts 
and circumstances that could constitute a violation of this 
statute, this is ultimately a matter for the U.S. Department of 
Justice and the United States Attorneys, not the Congress, for 
it is the executive branch, not we, which must enforce existing 
law.
    And let me be clear. What is at issue here is a potential 
violation of existing law, and what is needed, if anything, is 
the enforcement of that law, not the enactment of an additional 
law, and certainly not a change to our Constitution.
    No one would dispute that if in exchange for money a 
prosecutor dropped charges against an individual who had been 
indicted, then the prosecutor would be guilty of violating 
existing Federal law. No one would argue that we needed new 
laws in response to such a single corrupt act.
    Therefore, I urge the Congress to use caution when 
determining whether legislative action is needed in response to 
the actions of President Clinton. We should not overreact in 
response to the misdeeds and misbehavior of one man. We have, 
in my opinion, unwisely traveled down that road before. After 
Watergate, we passed an unprecedented restriction on the rights 
of political speech and association in the name of campaign 
finance reform, most of which was struck down by the United 
States Supreme Court as a violation of the First Amendment. And 
we, of course, continue that debate up to today, and we will 
resume it on the floor of the Senate next month.
    Also, in the wake of Watergate, we enacted an independent 
counsel statute that took us 20 years to get off the books. 
Fortunately, we let it expire in 1999, and I hope we have seen 
the end of that.
    And we should be particularly careful about changing our 
Nation's fundamental document. Our Constitution has been 
amended 27 times in 200 years, and we all recall that 10 of 
those were at one time. When we have embarked on the 
extraordinary course of amending our Constitution, it has 
typically been done to address extraordinary problems that were 
not readily solvable through ordinary means, ensuring, for 
example, that former slaves enjoyed due process and equal 
protection of the law, guaranteeing that women as well as men 
are allowed to exercise the franchise, making sure that young 
Americans who may be required to fight for their country are 
able to have a say in its governance.
    I submit that the potential abuses of Executive power this 
hearing will explore, as troubling and as inexcusable as they 
may be, are not so widespread and so major as to warrant 
changing our Constitution.
    In closing, let me again commend the committee, and 
particularly you, Senator Specter, for these hearings. I think 
this is an important inquiry, and I am glad that we are having 
it.
    Thank you.
    Senator Specter. Thank you, Senator McConnell.
    Mr. Adams, Mr. Holder, would you rise for the 
administration of the oath? Do you solemnly swear, Mr. Roger 
Adams, Mr. Eric Holder, that the testimony you will give before 
this Senate Judiciary Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Holder. I do.
    Mr. Adams. I do.
    Senator Sessions. Mr. Chairman, can I offer for the record 
a letter I received from Joseph D. Hubbard, a district attorney 
in Alabama, a fine district attorney who has been given a lot 
of important cases over the years for the State, who tried the 
Chandler case that the ranking member referred to earlier. He 
opposed this pardon, and I wanted to offer a letter for that. 
He personally participated as a cross-designated United States 
Attorney and tried the case, and it involved the murder of an 
informant ordered by a major drug-dealing individual. And he 
believes the commutation of that sentence was in error.
    Senator Specter. Without objection, it will be admitted.
    We have three panels. We request that the witnesses limit 
their opening statements to 7 minutes, and the Senators' rounds 
will be 5 minutes in duration on questioning. So we will set 
the clock in that way.
    Mr. Adams, we will begin with you.

   STATEMENT OF ROGER ADAMS, PARDON ATTORNEY, UNITED STATES 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Adams. Good morning, Mr. Chairman. I'm here today at 
the committee's request to provide information about how my 
office, the Office of the Pardon Attorney, normally handles 
clemency petitions and to describe why my office was not able 
to follow our normal procedures in the case of President 
Clinton's grants of pardon to Marc Rich and Pincus Green on the 
morning of January 20, 2001.
    Mr. Chairman, I have submitted a statement that I request 
be made part of the record, and I will summarize--
    Senator Specter. Without objection, it will be made part of 
the record in full.
    Mr. Adams. Thank you.
    Mr. Chairman, executive clemency petitions most commonly 
request relief in the form of pardon or commutation of 
sentence. The Department of Justice processes requests for 
executive clemency in accordance with regulations promulgated 
by the President and set forth at 28 C.F.R. Sections 1.1 
through 1.11. These regulations provide internal guidance for 
Department of Justice personnel who advise and assist the 
President in carrying out the pardon function, but they create 
no enforceable rights in persons applying for executive 
clemency and do not restrict in any way the plenary clemency 
authority granted to the President under Article II, section 2 
of the Constitution. While the regulations thus govern the 
process for clemency requests submitted to the Department, they 
do not govern requests submitted directly to the President.
    Under the provisions of 28 C.F.R. Section 1.2, a person 
does not become eligible to file a pardon request with the 
Department until the expiration of a 5-year waiting period that 
commences upon the ate of the individual's release from 
confinement for his most recent conviction, or if no condition 
of confinement was imposed as part of that sentence, the date 
of conviction. Moreover, the same regulation stipulates that no 
petition for pardon should be filed by an individual who is 
then on probation, parole, or supervised release. As the 
foregoing indicates, a person who has not yet been convicted or 
has not fully served the sentence for the Federal crime for 
which pardon is sought is ineligible for pardon or to apply for 
a pardon under the regulations that guide the Department of 
Justice's processing of pardon requests. However, these rules 
do not bind the President. The President retains the authority 
under the Constitution to consider a pardon request from an 
individual who is ineligible to apply under the regulations or 
who has not applied at all, and to grant clemency to such a 
person if he believes such action is appropriate.
    A pardon request is typically processed in the following 
manner. The pardon applicant files his clemency petition, 
addressed to the President, with the Office of the Pardon 
Attorney. He is free to utilize the services of an attorney or 
to act on his own in seeking a pardon. The standard form 
utilized for this process requests information about the 
offense, the petitioner's other criminal record, his employment 
and residency history since the conviction and other 
biographical information, and his reason for seeking a pardon. 
The application must be signed and notarized, and the applicant 
must also submit three notarized affidavits and character 
references who know of his conviction and support his pardon 
request.
    When my offices receives a pardon petition, it is screened 
to ensure that the applicant is, in fact, eligible to seek a 
pardon--in other words, that the crime for which the pardon is 
sought is a Federal offense and that the waiting period has 
been satisfied.
    If the petitioner is ineligible to apply for a pardon under 
the regulations, he is so informed. If the application is 
incomplete, further information is sought from the petitioner.
    As an initial investigative step in a pardon case, the 
Office of the Pardon Attorney contacts the United States 
Probation Office for the Federal district in which the 
petitioner was prosecuted to obtain copies of the pre-sentence 
report and the judgment of conviction, as well as information 
regarding the petitioner's compliance with court supervision 
and to ascertain the Probation Office's views on the merits of 
granting the pardon request.
    If review of the pardon petition and the data obtained from 
the Probation Office reveals information that clearly excludes 
the case from further favorable consideration, my office 
prepares a report to the President for the signature of the 
Deputy Attorney General recommending that pardon be denied. 
Alternatively, if this initial review indicates that the case 
may have some merit, it is referred to the FBI so that a 
background investigation can be conducted.
    The FBI report, when it is completed, is reviewed by my 
staff to ascertain whether favorable consideration of the case 
may be warranted. If the investigation reveals derogatory 
information of a type that would render pardon inappropriate 
and warrant denial of the request, my office prepares a report 
to the President, again, through the Deputy Attorney General, 
recommending this result.
    On the other hand, if the FBI report suggests that 
favorable treatment may be warranted or in cases which are of 
particular importance or which raise a significant factual 
question, the Office of the Pardon Attorney requests input from 
the prosecuting authority, either a U.S. attorney, a division 
of the Justice Department, and in some cases an independent 
counsel. And we also request information from the sentencing 
judge.
    If the individual case warrants, other Government agencies, 
such as Internal Revenue Service and INS, may be contacted as 
well. In appropriate cases in which the offense involved a 
victim, the prosecuting authority is asked to notify the victim 
of the pendency of the clemency petition and advise him that he 
may submit comments concerning the pardon request.
    Upon receipt of the responses to these inquiries, my office 
prepares a report and a proposed recommendation for action upon 
the case. The report is drafted for the signature of the Deputy 
Attorney General and is submitted for his review. If the Deputy 
Attorney General concurs with my office's assessment, he signs 
the recommendation and returns the report to my office for 
transmittal to the Counsel to the President. If, on the other 
hand, the Deputy Attorney General disagrees with the 
disposition proposed by the Pardon Attorney, he may direct the 
Pardon Attorney to modify the Department's recommendation. 
After the recommendation is signed by the Deputy Attorney 
General, the report is transmitted to the Counsel to the 
President for the President's action whenever he deems it 
appropriate.
    Now, when the President decides to grant clemency, whether 
in the form of pardon or commutation of sentence, the Counsel 
to the President informed the Office of the Pardon Attorney to 
prepare the appropriate clemency warrant. Typically, if the 
President intends to pardon a number of applicants, a master 
warrant of pardon will be prepared for his signature. The 
signed master warrant bears the seal of the Department of 
Justice, lists the names of all of the individuals to whom the 
President grants pardon, and directs the Pardon Attorney to 
prepare and sign individual warrants of pardon reflecting the 
President's action to be delivered to each pardon recipient. 
The preparation of the individual warrants by the Pardon 
Attorney is, therefore, a ministerial act which simply sets 
forth the decision that the President has already made. The 
individual warrant likewise bears the seal of the Department of 
Justice and reflects that it has been prepared at the direction 
of the President. When the individual pardon warrant has been 
prepared, it is sent to the applicant, or his attorney if he is 
represented by counsel, along with an acknowledgment form that 
the pardon recipient completes and returns to the Pardon 
Attorney's Office to reflect that he has received the warrant.
    Mr. Chairman, I note that my time has expired. I would be 
glad to dispense with the rest of my reading summary. It is 
actually contained in my prepared statement, and I would be 
glad to--
    Senator Specter. Well, we are interested in what you have 
to say, Mr. Adams, as to the procedures, so if you could 
summarize, we would appreciate it, but take some extra time.
    Mr. Adams. Let me move ahead with respect to the pardon of 
Marc Rich and Pincus Green. Mr. Chairman, none of the regular 
procedures that I have just described were followed.
    The first time that I learned the White House was 
considering these two persons for pardon was shortly after 
midnight on the morning of Saturday, January 20, 2001. At that 
time, I received a telephone call from the Office of the White 
House Counsel advising me that they were at that time faxing me 
a list of additional persons to whom the President was 
considering granting pardons. When the facsimile arrived, among 
the several names listed were Pincus Green and Marc Rich. Since 
the fax included no other information about these persons, I 
telephoned the White House Counsel's Office to advise that I 
would need additional identifying data in order to request that 
the FBI conduct criminal records checks on the named 
individuals.
    I might note, Mr. Chairman, I had been contacting the FBI 
for the past several days with names of persons for whom the 
White House wanted checks of criminal records and outstanding 
warrants.
    I was told by the White House Counsel staff that the only 
two people on the list for whom I needed to obtain record 
checks were Marc Rich and Pincus Green, and that it was 
expected that there would be little information about the two 
men because, to quote the words of the White House Counsel's 
Office, they had been living abroad for several years.
    I obtained the dates of birth and Social Security numbers 
for Rich and Green from the White House Counsel's Office, and I 
then passed this information along to the FBI by telephone so 
that the records checks could be completed. Shortly thereafter, 
the Counsel's Office faxed to my office a few pages that 
appeared to have come from the clemency petition that had been 
submitted to the White House on behalf of Mr. Rich and Mr. 
Green by Jack Quinn and some other attorneys. The information 
contained in these documents revealed that the pardon request 
sought clemency for pending charges that had been brought by 
indictment in the Southern District of New York some 17 years 
earlier, and that Rich and Green had resided outside of the 
United States ever since and were considered to be fugitives. 
At that point, a member of my staff began to conduct a quick 
Internet search for information about the two men.
    While that search was ongoing, I received a facsimile 
transmission from the FBI of records which confirmed that Rich 
and Green were wanted fugitives whom law enforcement 
authorities were willing to extradite for a variety of felony 
charges, including mail and wire fraud, arms trading, and tax 
evasion. Because I was concerned that the FBI transmission 
would not be readable--because it was a second- or third-
generation facsimile transmission--if it were itself faxed to 
the White House Counsel's Office, I wrote a quick summary of 
the information regarding the outstanding charges against Rich 
and Green and their fugitive status and faxed that to the 
Counsel's Office shortly before 1 a.m. on January 20th.
    Because of what we had learned about Rich and Green, I also 
immediately contacted Deputy Attorney General Holder at home 
through the Justice Department Command Center to alert him that 
the President was considering pardons to the two men. Mr. 
Holder indicated to me at that time he was aware of the pending 
clemency requests by Rich and Green.
    After receiving my short summary of the FBI's information 
about Rich and Green, personnel from the White House Counsel's 
Office called to ask that I fax them a copy of the material 
that I received from the FBI itself, and I did this shortly 
after 1 o'clock. I also included the limited information about 
Rich's and Green's fugitive status and the charges against them 
that my staff had been able to obtain at that point from the 
Internet.
    The only other time the names of Marc Rich and Pincus Green 
had come to my attention was on the morning of January 19, 
2001, when I first saw a copy of a letter dated January 10, 
2001, that their attorney, Jack Quinn, had sent to Deputy 
Attorney General Holder seeking his support for pardons for the 
two men. The Justice Department transmittal sheet attached to 
the letter indicated that on January 17th, the Department's 
Executive Secretariat had assigned the Quinn letter to my 
office for response and had sent a copy to the Deputy Attorney 
General's Office for information. My office actually received 
its copy on the afternoon of January 18th, and on the morning 
of the 19th, I saw it in our mail.
    Because neither Rich nor Green had filed a clemency 
application with my office and because the White House 
Counsel's Office had never indicated to me at that point that 
pardons for these two persons were under consideration, I 
proceeded to draft a short response on the morning of the 
19th--and I decided to hold it until the following Monday--
advising Mr. Quinn that neither man had submitted a pardon 
petition to my office and that if they wished to request 
pardons, the application forms were available from my office 
upon request.
    What I have just described, Mr. Chairman, is the totality 
of my involvement and the involvement of the Office of the 
Pardon Attorney in the Rich and Green pardons. In my prepared 
statement, Mr. Chairman, I have described how my office 
prepared the individual warrants that Mr. Rich and Mr. Green, a 
subject to which you alluded, and how we also prepared those in 
the other cases. But in the interest of time, I will not go 
over those now.
    [The prepared statement of Mr. Adams follows:]

    Statement of Roger Adams, Pardon Attorney, Department of Justice

    Good morning, Mr. Chairman and Members of the Committee:
    I am here today at the Committee's request to provide information 
about how my office, the Office of the Pardon Attorney, normally 
handles clemency petitions, and to describe the procedures we followed 
with regard to President Clinton's grants of pardon to individuals, 
including Marc Rich and Pincus Green, on January 20, 2001.
    Executive clemency petitions most commonly request relief in the 
form of pardon or commutation of sentence. The Department of Justice 
processes requests for executive clemency in accordance with 
regulations promulgated by the President and set forth at 28 C.F.R. 
Sec. Sec. 1.1 to 1.11. These regulations provide internal guidance for 
Department of Justice personnel who advise and assist the President in 
carrying out the pardon function, but they create no enforceable rights 
in persons applying for executive clemency and do not restrict in any 
way the plenary clemency authority granted to the President under 
Article II, Section 2 of the Constitution. While the regulations thus 
govern the process for clemency requests submitted to the Department, 
they do not govern requests submitted directly to the President.
    A presidential pardon serves as an official statement of 
forgiveness for the commission of a federal crime and restores basic 
civil rights. It does not connote innocence. Under the provisions of 28 
C.F.R. Sec. 1.2, a person does not become eligible to file a pardon 
request with the Department until the expiration of a five-year waiting 
period that commences upon the date of the individual's release from 
confinement (including home or community confinement) for his most 
recent conviction or, if no condition of confinement was imposed as 
part of that sentence, the date of conviction. Typically, the waiting 
period is triggered by the sentence imposed for the offense for which 
the pardon is sought, but any subsequent conviction begins the waiting 
period anew. Moreover, the same regulation stipulates that no petition 
for pardon should be filed by an individual who is then on probation, 
parole, or supervised release. As the foregoing indicates, a person who 
has not yet been convicted or has not fully served the sentence for the 
federal crime for which pardon is sought is ineligible for pardon under 
the regulations that guide the Department of Justice's processing of 
pardon requests. However, these rules do not bind the President. The 
President retains the authority under the Constitution to consider a 
pardon request from an individual who is ineligible to apply under the 
regulations or who has not applied at all, and to grant clemency to 
such a person if he believes such action to be appropriate.
    A pardon request is typically processed in the following manner. 
The pardon applicant files his clemency petition, addressed to the 
President, with the Office of the Pardon Attorney. He is free to 
utilize the services of an attorney or to act on his own behalf in 
seeking pardon. The standard form utilized for this process requests 
information about the offense, the petitioner's other criminal record, 
his employment and residence history since the conviction and other 
biographical information, and his reasons for seeking pardon. The 
application must be signed and notarized, and the applicant must also 
submit three notarized affidavits from character references who are 
unrelated to him, know of his conviction, and support his pardon 
request. When my office receives a pardon petition, it is screened to 
ensure that the applicant is in fact eligible to seek a pardon (i.e., 
that the crime for which pardon is sought is a federal offense and that 
the waiting period has been satisfied), to determine whether any 
necessary information has been omitted from the application or whether 
the applicant's responses to the questions require further elaboration, 
and to ascertain whether the petitioner has described his efforts at 
rehabilitation. If the petitioner is ineligible to apply for pardon 
under the regulations, he is so informed.
    If the application is incomplete, further information is sought 
from the petitioner.
    As an initial investigative step in a pardon case, the Office of 
the Pardon Attorney contacts the United States Probation Office for the 
federal district in which the petitioner was prosecuted to obtain 
copies of the presentence report and the judgment of conviction, as 
well as information regarding the petitioner's compliance with court 
supervision, and to ascertain the Probation Office's views regarding 
the merits of the pardon request. If review of the pardon petition and 
the data obtained from the Probation Office reveals information that 
clearly excludes the case from further favorable consideration, my 
office prepares a report to the President for the signature of the 
Deputy Attorney General recommending that pardon be denied. 
Alternatively, if the initial review indicates that the case may have 
some merit, it is referred to the FBI so that a background 
investigation can be conducted.
    The FBI does not make a recommendation to support or deny a pardon 
request. Rather, the Bureau provides the Office of the Pardon Attorney 
with factual information about the petitioner including such matters as 
his criminal history, records concerning the offense for which pardon 
is sought, his employment and residence history, and his reputation in 
the community. The FBI report is reviewed by my staff to ascertain 
whether favorable consideration of the case may be warranted. If the 
investigation reveals derogatory information of a type that would 
render pardon inappropriate and warrant denial of the request, my 
office prepares a report to the President through the Deputy Attorney 
General recommending such a result.
    If the FBI report suggests that favorable treatment may be 
warranted, or in cases which are of particular importance or in which 
significant factual questions exist, the Office of the Pardon Attorney 
requests input from the prosecuting authority (e.g., a United States 
Attorney, a Division of the Department of Justice, or in some cases, an 
Independent Counsel) and the sentencing judge concerning the merits of 
the pardon request. If the individual case warrants, other government 
agencies, such as the Internal Revenue Service or the Immigration and 
Naturalization Service, may be contacted as well. In appropriate cases 
in which the offense involved a victim, the prosecuting authority is 
asked to notify the victim of the pendency of the clemency petition and 
advise him that he may submit comments concerning the pardon request. 
Upon receipt of the responses to these inquiries, my office prepares a 
report and a proposed recommendation for action upon the case. The 
report is drafted for the signature of the Deputy Attorney General and 
is submitted for his review. If the Deputy Attorney General concurs 
with my office's assessment, he signs the recommendation and returns 
the report to my office for transmittal to the Counsel to the 
President. If the Deputy Attorney General disagrees with the 
disposition proposed by the Office of the Pardon Attorney, he may 
direct the Pardon Attorney to modify the Department's recommendation. 
After the recommendation is signed by the Deputy Attorney General, the 
report is transmitted to the Counsel to the President for the 
President's action on the pardon request whenever he deems it 
appropriate.
    Similarly, a federal inmate seeking a presidential commutation 
(reduction) of his sentence files a petition for such relief with the 
Office of the Pardon Attorney. In contrast to a pardon, a commutation 
is not an act of forgiveness, but rather simply remits some portion of 
the punishment being served. An inmate is eligible to apply for 
commutation so long as he has reported to prison to begin serving his 
sentence and is not concurrently challenging his conviction through an 
appeal or other court proceeding. The petitioner is free to append to 
the commutation application--or to submit separately at a later date--
any additional documentation he believes will provide support for his 
request. In completing the petition, the inmate--or his attorney, if he 
is represented by counsel--explains the circumstances underlying his 
conviction; provides information regarding his sentence, his criminal 
record, and any appeals or other court challenges he has filed 
regarding the conviction for which he seeks commutation; and states the 
grounds upon which he bases his request for relief.
    When my office receives a commutation petition, we review it to 
ensure that the applicant is eligible to apply for clemency, and we 
commence an investigation of the merits of the request. The initial 
investigative step involves contacting the warden of the petitioner's 
correctional institution to obtain copies of the presentence report and 
judgment of conviction for the petitioner's offense, as well as the 
most recent prison progress report that has been prepared detailing his 
adjustment to incarceration, including his participation in work, 
educational, vocational, counseling, and financial responsibility 
programs; his medical status; and his disciplinary history. We also 
check automated legal databases for any court opinions relating to the 
petitioner's conviction. In most cases, this information is sufficient 
to enable my office to prepare a report to the President through the 
Deputy Attorney General recommending that commutation be denied.
    In a minority of cases, however, if our review of this information 
raises questions of material fact or suggests that the commutation 
application may have some merit, or because the case presents 
significant issues, my office contacts the United States Attorney for 
the federal district of conviction or the prosecuting section of the 
Department of Justice for comments and recommendations regarding the 
commutation request. We also contact the sentencing judge, either 
through the United States Attorney or directly, to solicit the judge's 
views and recommendation on the clemency application. As with pardon 
requests, if the individual case warrants, other government agencies 
may be contacted as well.
    In appropriate cases in which the offense involved a victim, the 
prosecuting authority is asked to notify the victim of the pendency of 
the commutation petition and advise him that he may submit comments 
concerning the clemency request.
    Following an evaluation of all of the material gathered in the 
course of the investigation, the Pardon Attorney's Office drafts a 
report and recommendation for action on the merits of the commutation 
request which is transmitted to the Deputy Attorney General. Following 
his review, the Deputy Attorney General may either sign the report and 
recommendation or return it to my office for revision. Once the Deputy 
Attorney General determines that the report and recommendation 
satisfactorily reflects his views on the merits of the clemency 
request, he signs the document, which is then forwarded to the Counsel 
to the President for consideration by the President. Thereafter, when 
he deems it appropriate, the President acts on the commutation petition 
and grants or denies clemency, as he sees fit.
    When the President decides to grant clemency, whether in the form 
of pardon or commutation of sentence, the Counsel to the President 
informs the Office of the Pardon Attorney to prepare the appropriate 
clemency warrant. Typically, if the President intends to pardon a 
number of applicants, a master warrant of pardon will be prepared for 
his signature. The signed warrant bears the seal of the Department of 
Justice, lists the names of all of the individuals to whom the 
President grants pardon, and directs the Pardon Attorney to prepare and 
sign individual warrants of pardon reflecting President's action to be 
delivered to each pardon recipient. The preparation of the individual 
warrants by the Pardon Attorney is therefore a ministerial act which 
simply sets forth the decision that the President has already made. The 
individual warrant likewise bears the seal of the Department of Justice 
and reflects that it has been prepared at the direction of the 
President. When the individual pardon warrant has ' been prepared, it 
is sent to the applicant, or his attorney if he is represented by 
counsel, along with an acknowledgment form that the pardon recipient 
completes and returns to the Pardon Attorney's Office to reflect 
receipt of the warrant.
    If the President decides to commute a prisoner's sentence, the 
Pardon Attorney's Office likewise prepares the warrant of commutation 
for the President's signature. Depending upon how many sentences are to 
be commuted, either a master warrant detailing all of the commuted 
sentences or individual commutation warrants may be prepared. After the 
President has signed the commutation warrant, which bears the seal of 
the Department of Justice, the Pardon Attorney's Office transmits a 
certified copy of the document to the Bureau of Prisons to effect the 
inmate's release. A copy of the warrant is also sent to the 
petitioner's attorney if he is represented by counsel. Whenever the 
President grants a pardon or commutation, the Pardon Attorney's Office 
notifies the prosecuting authority (United States Attorney or Division 
of the Justice Department), the sentencing judge, the relevant United 
States Probation Office, the FBI, and any other government agencies 
whose views were solicited, of the final decision in the matter.
    When the President denies clemency, the Counsel to the President 
typically notifies the Deputy Attorney General and the Pardon 
Attorney's Office by memorandum that the affected cases have been 
decided adversely. The Pardon Attorney's office then notifies the 
pardon or commutation applicant, or his attorney, of the decision. In 
addition, the Pardon Attorney's Office notifies the prosecuting 
authority, the sentencing judge, other government agencies whose views 
were solicited, and, in the case of a commutation, the Federal Bureau 
of Prisons, of the outcome of the request. No reasons for the 
President's action are given in the notice of denial.
    With respect to the pardon of Marc Rich and Pincus Green, none of 
the regular procedures were followed. The first time I learned that the 
White House was considering these two persons for pardon was shortly 
after midnight on the morning of Saturday, January 20, 2001. At that 
time, I received a telephone call from the Office of the White House 
Counsel advising me that they were faxing me a list of additional 
persons to whom the President was considering granting pardons. When 
the facsimile arrived, among the several names listed were Pincus Green 
and Marc Rich. Since the fax included no other information about these 
persons, I telephoned the White House Counsel's Office to advise that I 
would need additional identifying data in order to request that the FBI 
conduct criminal records checks on the named individuals. (I had been 
contacting the FBI for the past several days with names of persons for 
whom the White House wanted checks of criminal records and outstanding 
warrants.)
    I was told by White House Counsel staff that the only two people on 
the list for whom I needed to obtain records checks were Marc Rich and 
Pincus Green, and that it was expected there would be little 
information about the two men because they had been ``living abroad'' 
for several years. I obtained the dates of birth and Social Security 
numbers for Rich and Green from Counsel's Office and then passed this 
information along to the FBI by telephone so that the records checks 
could be completed. Shortly thereafter, White House Counsel's Office 
personnel faxed to my office a few pages that appeared to have come 
from a clemency petition that had been submitted to the White House on 
behalf of Rich and Green by Jack Quinn, Esq. and other attorneys. The 
information contained in these documents revealed that the pardon 
request sought clemency for pending charges that had been brought by 
indictment in the Southern District of New York some 17 years earlier, 
and that Rich and Green had resided outside the United States ever 
since and were considered to be fugitives. At that point, a member of 
my staff began to conduct a quick Internet search for information about 
the two men.
    While that search was ongoing, I received a facsimile transmission 
from the FBI of records which confirmed that Rich and Green were wanted 
fugitives whom law enforcement authorities were willing to extradite 
for a variety of felony charges, including mail and wire fraud, arms 
trading, and tax evasion. Because I was concerned that the FBI 
transmission would not be readable if it were itself faxed to the White 
House Counsel's Office, I wrote a quick summary of the information 
regarding the outstanding charges against Rich and Green and their 
fugitive status and faxed that to Counsel's Office shortly before 1:00 
a.m. on January 20th. Because of what we had learned about Rich and 
Green, I also immediately contacted Deputy Attorney General Eric Holder 
at home through the Justice Department Command Center to alert him that 
the President was considering granting pardons to the two men. Mr. 
Holder indicated to me at that time that he was aware of the pending 
clemency requests by Rich and Green. After receiving my short summary 
of the FBI's information about Rich and Green, personnel from the White 
House Counsel's Office called to ask that I fax them a copy of the FBI 
record itself. I did so shortly after 1:00 a.m., and also included the 
limited information about Rich's fugitive status and the charges 
against him that my staff had been able to obtain from the Internet.
    The only other time the names of Marc Rich and Pincus Green had 
come to my attention was on the morning of January 19, 2001, when I 
first saw a copy of a letter dated January 10, 2001, that their 
attorney, Jack Quinn, had sent to Deputy Attorney General Holder 
seeking his support for pardons for the two men. The Justice Department 
transmittal sheet attached to the letter indicated that on January 17 
th, the Department's Executive Secretariat had assigned the 
Quinn letter to my office for response and had sent a copy to the 
Deputy Attorney General's Office for information. My office received 
its copy on the afternoon of January 18 th, and on the 
morning of the I9 th, I saw it in our mail. The due date for 
response indicated by the Executive Secretariat was January 31 
st. Because neither Rich nor Green had filed a clemency 
application with my office and because the White House Counsel's Office 
had never indicated to me that pardons for these two persons were under 
consideration, I simply drafted a short response on the morning of the 
19 th, to be held until the following Monday, advising Mr. 
Quinn that neither man had submitted a pardon petition to my office and 
that if they wished to request pardons, the application forms were 
available upon request.
    Mr. Chairman, I understand that the Committee is also interested in 
hearing how the Department of Justice determined the scope of the 
individual pardon grants made on January 20, 2001. A majority of the 
persons named on the master pardon warrant had submitted petitions for 
pardon to the Department of Justice. Their applications specified the 
offenses for which they had been convicted and for which they sought 
pardon. In many cases, we had sufficient time to fully process their 
cases and submit reports and recommendations to the White House in 
which we discussed those offenses. In these cases, it is clear that 
President Clinton intended to grant pardons for the offenses so noted 
and discussed.
    Other persons named on the master warrant also submitted petitions 
to the Department, but they arrived too late for us to submit a report 
and recommendation. Many of these persons had also submitted their 
petitions directly to the White House, and in some cases the White 
House asked the Office of the Pardon Attorney for copies of their 
petitions. In these cases as well, we are confident that President 
Clinton intended to grant pardons for the offenses cited in their 
petitions.
    Some of the persons whose names were on the master pardon warrant 
never submitted petitions to the Department. We have determined the 
scope of the pardons for these persons in a variety of ways. In some 
cases, including those of Marc Rich and Pincus Green, the White House 
Counsel's office sent us, just prior to the granting of the pardons, 
copies of or excerpts from the pardon requests that these persons or 
their counsels had submitted to the White House. We therefore drafted 
the individual pardon warrants to reflect the offenses for which the 
pardon recipients were convicted (or, in the case of Rich and Green, 
indicted) as described in these submissions made directly to the White 
House.
    In several other cases in which the Department received nothing 
from the pardoned person, we were able to determine that the person had 
been prosecuted by an Independent Counsel. In these instances, we 
determined that the Independent Counsel conviction is the person's only 
federal conviction. We therefore are confident that it was this 
conviction that President Clinton intended to pardon, and drafted the 
individual warrant accordingly. We obtained information as to dates of 
conviction and exact offenses for which these persons were convicted 
from the Internet web sites of several Independent Counsels, and in 
some cases obtained court documents such as the judgment orders, which 
give the date of conviction and the United States Code citation for the 
offense of conviction.
    In non-Independent Counsel cases in which we have received either 
no documents at all or very sketchy information from the White House 
Counsel in the last hours before the pardons were granted, we have 
determined in all but one case that the person has only one federal 
conviction. We are therefore confident that it was this single 
conviction that President Clinton intended to pardon, and so drafted 
the individual warrants accordingly. We obtained information as to the 
date of conviction and the exact charges by contacting United States 
Attorney's Offices and United States Probation Offices and requesting 
the judgment orders in each case. We intend to prepare in this fashion 
the remaining nine individual warrants that have not been completed as 
of today. The delay in the processing of these warrants is occasioned 
by the need of the U.S. Attorneys and Probation Officers to request the 
official records from archived files stored at distant locations, and 
is not due to any doubt as to the scope of the pardon intended by 
President Clinton. We expect to complete this task shortly. In one case 
(that of Adolph Schwimmer), the conviction of which we have knowledge 
is more than 50 years old. The age of that conviction and Mr. 
Schwimmer's own advanced age may prolong for awhile the process of 
confirming that this is only conviction. In any event, we have no 
knowledge or belief that President Clinton intended to pardon anyone 
for conduct for which he or she was not at least charged and, in most 
cases, convicted. Moreover, my office has had no contact of any sort 
with President Clinton or any of his assistants since the master pardon 
warrant was signed on January 20 th.

    Senator Specter. Thank you very much, Mr. Adams.
    Mr. Holder, if you could direct at least part of your 
comments to the specific action you took after Mr. Adams called 
you at 1 a.m. on January 20, 2001, we would appreciate it.

   STATEMENT OF ERIC H. HOLDER, JR., FORMER DEPUTY ATTORNEY 
        GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Holder. What I would ask, Mr. Chairman, is instead of 
making a statement, if I could have the statement that I made 
before the House committee--I think this would be appropriate--
to have this made a part of the record here.
    Senator Specter. It will be made a part of the record 
without objection.
    Senator Feinstein. Would you speak directly into the mike? 
Thank you.
    Mr. Holder. What I would like to do is really just touch on 
a couple of points and then respond to any questions that 
anybody might have.
    First, I think one thing ought to be made clear. The Deputy 
Attorney General, the Pardon Attorney of the Justice 
Department, do not decide pardon requests. We make 
recommendations to the President where the decision is 
ultimately made. There have been times when we have made, I 
have made recommendations to the President in favor of a pardon 
request that was not granted. Conversely, there have been times 
when I have recommended against pardon requests, and they have 
been granted. In that list of 140 or so that were granted in 
that last day of the Clinton administration, there are people 
on that list that we recommended, I recommended against pardons 
being granted.
    I also would like to place some context, if I can, tell you 
a little about that last day, that is, the 19th. I was 
extremely busy that day, and particularly that night. We are 
looking back now in the relative calm of this room, but on that 
day, the last day of the administration, I was engaged in 
personnel matters, death penalty issues, among them the 
Chandler pardon request. We were dealing with Federal Register 
matters, and something that took up a lot of my time were 
specific security concerns we had about the inauguration the 
next day.
    We had specific information that gave us great concern 
about the safety or the potential safety problems that we were 
going to have with the incoming President. We were not 
concerned about the ride from the White House to the 
inauguration or the inauguration itself, but were very 
concerned about the ride from the inaugural to the reviewing 
stand.
    At 12 o'clock on that day, which would have been at the 
time of the inauguration, I was to become the Acting Attorney 
General. Attorney General Reno would have stopped her 
responsibilities at that point, and so I spent a lot of time 
that evening focusing on that issue and the other issues that I 
have talked about.
    As I have indicated in my prepared remarks, there are 
things I wish I could have done differently on that night, but 
I want people to try to understand that this was not the only 
thing on my plate on that evening, and it was not one of the 
chief things that I had on my plate that evening.
    In retrospect, what I think I could have done, what I 
should have done that evening, was to check with the person on 
my staff who was responsible for handling pardon matters to see 
where we stood on the Rich matter. I assume that what had 
happened--I assume, as I indicated in my remarks, that after 
the pardon request would have been filed with the White House 
that it would have been sent to the Justice Department for 
review.
    I also assume that staff contacts were going on between my 
staff, perhaps the Pardon Attorney staff, and people in the 
White House Counsel's Office. I did not think that from 
November the 21st, when I guess I first heard about the 
possibility of the pardon, until January the 19th that I was 
the only person in the entire Justice Department who was aware 
of this matter. In fact, I found out later on that there were, 
in fact, conversations that occurred between my staff, White 
House Counsel, and Mr. Adams about other matters, other New 
York-related pardon matters, that I did not become aware of 
until after--well, sometime after the 20th. I assumed that 
those kinds of contacts, those kinds of discussions, were 
ongoing.
    With regard to the question that you asked, Senator 
Specter, Mr. Adams did call me about 1 or so to tell me about 
what had transpired in his interaction with the White House 
Counsel's Office. I had known about that, I believe, from about 
11 or 12. Again, as is indicated in my prepared remarks, the 
person on my staff indicated to me that appearing on a list or 
there had been some indication to her that the Green and Rich 
names appeared on a list or it had been indicated to her that a 
pardon--pardon applications for them were going to be granted, 
or pardons were going to be granted for them.
    By the time that I got that information, I thought that a 
decision had been made, that the President had rendered a 
decision, had made up his mind, had considered all the things 
that he was going to consider, and so I took no action after 
that point.
    Beyond that, I would simply respond to any questions that 
anybody might have.
    [The prepared statement of Mr. Holder follows:]

   Statement of Eric H. Holder, Jr., Former Deputy Attorney General, 
                Department of Justice, Washington, D.C.

    Mr. Chairman, Senator Leahy, members of the Committee, I am happy 
to have the opportunity to come before you today and to discuss the 
Justice Department's role in the pardon of Marc Rich.
    At the outset I want to emphasize one thing--the career people in 
the Department worked very hard to process all of the pardon requests 
that came to them in the waning days and hours of the Clinton 
Administration. They are not to be faulted in this matter, As for my 
own role, although I always acted consistent with my duties and 
responsibilities as Deputy Attorney General, in hindsight I wish that I 
had done some things differently with regard to the Marc Rich matter. 
Specifically, I wish that I had insured that the Department of Justice 
was more fully informed and involved in this pardon process.
    Let me be very clear about one important fact--efforts to portray 
me as intimately involved or overly interested in this matter are 
simply at odds with the facts. In truth, because the Marc Rich case did 
not stand out as one that was particularly meritorious, and because 
there were a very large number of cases that crossed my desk that 
similarly fit into this category, I never devoted a great deal of time 
to this matter and it does not now stick in my memory. By contrast, I 
did spend time monitoring cases, especially in those last days, 
involving people who were requesting commutations of disproportionately 
long drug sentences.
    I would like to briefly go through a chronology of the relevant 
events so as to explain the Department's involvement in this matter. I 
think my first contact with the Rich case came in late 1999 when Jack 
Quinn, the former White House counsel, called me and asked me to 
facilitate a meeting with the prosecutors in the Southern District of 
New York concerning a client of his named Marc Rich. This was not an 
unusual request. Over the years other prominent members of the bar and 
former colleagues, Republicans and Democrats, had asked me to arrange 
similar meetings with other offices around the country. Mr. Rich's name 
was unfamiliar to me. I believe that Mr. Quinn explained that he wanted 
the U.S. Attorney's office to drop charges that had been lodged against 
his client because of changes in the applicable law and Department 
policy. I asked a senior career person on my staff to look into the 
matter, and ultimately the prosecutors in the U.S. Attorney's office 
declined to meet with Mr. Quinn, Neither I nor anyone on my staff ever 
pressed the prosecutors to have the meeting. We simply deferred to them 
because it was their case- In candor, if I were making the decision as 
United States Attorney, I probably would have held the 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 for a 
meeting was fully considered. Consequently, I gained only a passing 
familiarity with the underlying facts of the Rich case, and after the 
prosecutors declined to meet with Mr. Quinn I had no reason to delve 
further into this matter.
    On November 21, 2000, members of my star and the United States 
Marshals Service and I had a meeting with Mr. Quinn. Though it was one 
of eight meetings I had on my schedule that day, I remember the meeting 
because Mr. Quinn's client had a good idea about using the Internet to 
help the Marshall's Service dispose of properties that had come into 
its possession as a result of forfeiture actions. Mr. Quinn has 
recently stated that after the meeting he told me he was going to file 
a pardon request on behalf of Mr. Rich at the White House. I have no 
memory of that conversation but do not question Mr. Quinn's assertion. 
As comment would have been a 2
    fairly unremarkable one given my belief that any pardon petition 
filed with the White House would ultimately be sent to the Justice 
Department for review and consideration.
    Mr. Quinn has also recently stated that he sent a note to me about 
the Rich case on January l0'''. I never received that note. The correct 
address of the Justice Department does not appear on the 
correspondence. The note ultimately surfaced on the desk of the Pardon 
Attorney on January 18''', less than 48 hours before the pardon was 
signed by the President.
    On Friday, January 19' of this year, the last full day of the 
Clinton Administration, when I was dealing with such issues as the 
death penalty, pressing personnel matters and security issues related 
to the next day's inauguration, I received a phone call from Mr. Quinn 
at about 6:30 p.m. He told me that I would be getting a call from the 
White House shortly, and he asked me what my position would be on the 
pardon request for Mr. Rich. I told him that although I had no strong 
opposition based on his recitation of the facts, law enforcement in New 
York would strongly oppose it. Given Mr. Rich's fugitive status, it 
seemed clear to me that the prosecutors involved would never support 
the request. But I did not reflexively oppose it because I had 
previously supported a successful pardon request for a fugitive, 
Preston King, who, in the context of a selective service case, had been 
discriminated against in the 1950s because of the color of his skin.
    Shortly after my conversation with Mr. Quinn, I received a phone 
call from the White House Counsel, Beth Nolan, asking me my position. I 
am not sure if it was Ms. Nolan or Mr. Quinn who brought to my 
attention that Prime Minister Barak had weighed in strongly on behalf 
of the pardon request, but this assertion really struck me. With that 
significant piece of new information I ultimately told Ms. Nolan that I 
was now ``neutral, leaning towards favorable'' if there were foreign 
policy benefits that would be reaped by granting the pardon.
    Even after my conversation with Ms. Nolan on the evening of January 
19 th, I did not think that the pardon request was likely to 
be granted given Mr. Rich's fugitive status. I continued to believe 
this until I actually heard that his name had been placed on a list of 
pardons to be granted by the White House. I was informed of this list 
around eleven o'clock, perhaps midnight, on the night of the 19 
th. In retrospect, I now wish that I had placed as much 
focus on the Rich case as I did on other pardons involving people such 
as Derrick Curry, Dorothy Gaines and Kemba Smith, all of whom had 
received extraordinarily long drug sentences which, I strongly believe, 
were not commensurate with their conduct. Though I am speculating 
somewhat, had I known of the reported meeting that night between the 
President and counsel for Mr. Rich, I might have become more active in 
this matter, even at that late date, sensing that there was a real 
possibility the pardon request might be granted.
    On the morning of Monday, January 22 nd of this year, 
Mr. Quinn called me. I returned his call some four or five hours later. 
He asked me what steps needed to be taken to ensure that his newly-
pardoned client was not detained by international law enforcement 
authorities when he traveled. We talked about how he might get 
detainers removed from computers and notify Interpol of the pardon, and 
about similar things of a technical nature. At no time did I 
congratulate Mr. Quinn about his efforts. If I said anything to him 
about his having done a good job, it was merely a polite acknowledgment 
of the obvious--that he had been surprisingly successful in obtaining a 
pardon for this particular client,
    As you can see from these facts, attempts to make the Justice 
Department, or me, the ``fall guys'' in this matter are rather 
transparent and simply not consistent with the facts. I, and others at 
the Justice Department, had nothing to gain or lose by the decision in 
this matter; we had no professional, personal, or financial 
relationship with Mr. Rich or anyone connected to him; and, to the best 
of my knowledge, none of us ever saw the Rich pardon application. 
Indeed, it is now clear, and this is admittedly hindsight, that we at 
the Justice Department--and more importantly, former President Clinton, 
the American public, and the cause of justice--would have been better 
served if this case had been handled through the normal channels.
    I have now ended a twenty five year public service career. All that 
I have from that time is the good work I think I have done, its impact 
on people and, I hope, a reputation for integrity. I have been angry, 
hurt and even somewhat disillusioned by what has transpired over the 
past two weeks with regard to this pardon. But, I've tried to keep 
foremost in my mind the meeting I had at my house with Derrick Curry 
and his father the week after his sentence was commuted by President 
Clinton, I know that my attention to that and similar cases made a 
difference in the lives of truly deserving people. Of that I am proud 
and grateful.

    Senator Specter. Thank you, Mr. Holder.
    Mr. Adams, you testified that when you talked to White 
House Counsel about these two men, you were told that they were 
``living abroad''?
    Mr. Adams. That's correct, Senator.
    Senator Specter. That is all? Nothing about their being 
fugitives?
    Mr. Adams. The word ``fugitive'' did not come to my mind 
right then. The fact that the phrase ``living abroad'' caught 
my attention, and I decided that even though they hadn't asked 
for much, that I really wanted to do at least the limited FBI 
record check that we could do, which was for outstanding 
warrants and criminal history.
    Senator Specter. But when you were told they were living 
abroad, you were not told that they were under indictment?
    Mr. Adams. No, sir, I was not.
    Senator Specter. Or that they were fugitives?
    Mr. Adams. First, I was not told they were fugitives. I 
learned that from the FBI. I was told that they were under 
indictment when the White House Counsel's Office, I think as I 
testified, a few minutes after our initial conversation faxed 
me a portion of the request for pardon that Mr. Quinn had filed 
for these two men with the White House, and that indicated that 
they were under indictment, a particular indictment in the 
Southern District of New York dating from 1983.
    Senator Specter. Mr. Adams, you testified that these 
warrants were to be delivered to the individuals who were to be 
pardoned?
    Mr. Adams. That is correct.
    Senator Specter. Was the document on executive grant of 
clemency ever delivered to Mr. Marc Rich?
    Mr. Adams. The individual pardon warrants of both Mr. Rich 
and Mr. Green which I had been directed to prepare by President 
Clinton's signing of the master warrant--it was delivered--at 
least it was put in the mail; I don't think it has been 
delivered now to their counsel, Mr. Quinn. It is a standard 
procedure when a clemency applicant is represented by counsel 
and the request is approved, we deliver the documents to the 
person's counsel.
    Senator Specter. Was there anything that you knew factually 
from the President about Mr. Marc Rich besides the fact that 
his name appeared on this master list?
    Mr. Adams. Anything I knew from the President about Marc 
Rich?
    Senator Specter. Yes.
    Mr. Adams. No, Senator. What I have testified to and what 
is in my statement is the entire scope of my dealings with the 
White House on it. The dealings were through counsel, through 
the White House counsel.
    Senator Specter. And, Mr. Adams, when was this document, 
Executive Grant of Clemency, which recites--when was it 
prepared?
    Mr. Adams. Probably prepared some day last week. It was 
prepared after January 20th.
    Senator Specter. Well, the document recites on its face, 
``In accordance with these instructions and authority, I have 
signed my name and caused the seal of the Department of Justice 
to be affixed hereto, and affirm that the action is the act of 
the President being performed at his direction, done at the 
city of Washington, District of Columbia, on January 20, 2001, 
by direction of the President. Roger C. Adams, Pardon 
Attorney.''
    And you are saying that this recitation is inaccurate?
    Mr. Adams. It is inaccurate in the sense that there was no 
physical way we could sign--or I could prepare individual 
warrants and sign them all on January 20. It has been customary 
for many years that the individual warrants reflect the date of 
the grant, as set out in the master pardon warrant. But it is 
understood that we are not physically able to prepare or 
deliver--
    Senator Specter. Well, Mr. Adams, I can certainly 
understand why you couldn't get them all completed, but I just 
want to be emphatic or clear for the record that the recitation 
that it was done on January 20, 2001, is not accurate.
    Mr. Adams. It is true I did not sign it on January 20. That 
is true, but it certainly reflected the action of the 
President, then President Clinton, taken on January 20.
    Senator Specter. Well, the action of President Clinton was 
taken on the master executive grant.
    There is another document which I know you are aware of, 
Mr. Adams, which has the insignia of the Department of Justice 
Pardon Attorney, stamped in January 20, 2001, memorandum to 
Director of Office of Public Affairs from Roger C. Adams, 
R.C.A., Pardon Attorney; subject: Marc Rich.
    ``On the above date, President Clinton granted Mr. Rich a 
full and unconditioned pardon after completion of sentence,'' 
close quote, and it purports to bear your initials. Are those, 
in fact, your initials?
    Mr. Adams. Yes, they are, Senator.
    Senator Specter. This may obviously be simply a mistake, or 
it may reflect that it is customary for the President to 
specify pardons, as many of these documents did. This is one of 
many which contain a recitation. The language is ``a full and 
unconditioned pardon on completion of sentence.''
    What are the facts behind this memorandum, Mr. Adams?
    Mr. Adams. OK. What you have in front of you, Senator, that 
is a standard memorandum that my office prepares to the Office 
of Public Affairs to notify the Public Affairs Office that a 
pardon has been granted. The standard form recites that it is 
for pardon after completion of sentence because that is the 
situation with the vast, vast majority of pardons.
    Senator Specter. Is there any suggestion at all that 
President Clinton intended this pardon to apply after Mr. Rich 
fulfilled his sentence?
    Mr. Adams. I don't believe there is, Senator. What happened 
was we prepared that document in my office about 2:30, 3 in the 
morning, on the 20th. Unfortunately, we just didn't--we used 
the standard boilerplate language which recites ``pardon after 
completion of sentence.'' It was simply an error on our part, 
you know, a direct result, I believe, of the fact that this was 
a very unusual situation.
    This request had come in very late. We were frankly tired. 
We didn't catch it. We should have. It was a mistake in our 
part. We should have not used that--
    Senator Specter. Mr. Adams, pardon me for interrupting, but 
my yellow light is on and I intend to observe the time, as all 
Senators will.
    This document, which is the executive grant of clemency for 
Marc Rich, is the document which has to be delivered to him to 
be effective, right?
    Mr. Adams. It has to be signed. I am not sure it has to be 
delivered to him.
    Senator Specter. Well, you said that these documents were 
delivered, but it has to be signed. Does the President of the 
United States have any authority to act as President after noon 
on January 20?
    Mr. Adams. His term certainly ends on noon on January 20.
    Senator Specter. Well, if he has no authority to act after 
noon on January 20, does he have the authority to delegate any 
authority to you?
    Mr. Adams. Well, I think when he delegated the authority to 
me, he was President. It seemed to me appropriate that we would 
continue to carry out those instructions, particularly given 
the fact situation here. It was obvious that there was no way 
this many individual warrants could be completed by noon on the 
20th. I was simply carrying--as a ministerial act, I was 
carrying out the actions of--
    Senator Specter. Well, that is a consequence of having it 
done in the early morning hours of January 20. Well, the legal 
consequences have to be determined, but I thank you for 
providing the factual information.
    My red light is on. We will turn to Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman. If I 
might just be allowed an observation first, before I ask my 
questions.
    One of the things that I see increasing in this country is 
the campaign that surrounds a pardon request. People who file 
for a pardon or a commutation then get their families or 
friends or their attorneys to really go out and organize a 
campaign. A lot of well-meaning people get involved and they 
put on a lot of pressure, and even more well-meaning people get 
involved. I think Mr. Holder is one of them, for example, and 
something like this can really ruin their entire career.
    I think if there is a message from these hearings, it is 
for to people who get involved in these pardon requests to 
really know the facts before they get involved. I see this with 
the Rich case, I see it with the Vignali case, I saw it with 
the FALN case. There really is a constituency pressing on the 
chief executive to deliver a pardon. And they really don't get 
involved with the nature of the crime or the nature of the 
sentence. Obtaining a pardon just becomes a kind of political 
pressure point. In those cases, obviously the result was 
successful, and it will probably take a number of good people 
down with them, and I think that is really too bad.
    Mr. Adams, let me ask this question. Section 1.6(b) of the 
Rules Governing Petitions for Executive Clemency, which allows 
crime victims to be notified of and heard regarding certain 
clemency petitions, took effect on September 28 of the year 
2000.
    Mr. Adams. That is correct.
    Senator Feinstein. I would be interested in an accounting 
of how that section has operated for thess past 4 months. Let 
me begin with this question: In how many cases did the Attorney 
General attempt to notify the victim of a petition in the last 
4 months?
    Mr. Adams. I can't give a--the Attorney General did not 
attempt to do it personally in any case. There were a number of 
cases, eight or ten anyway, where there were victims and we 
asked--the standard procedure, the way to ask is my office--if 
the case is being seriously considered or if it is a case of 
some moment that we want to do a very complete report on and 
there are victims, we asked the United States attorney's office 
to contact victims. I would estimate 8 or 10, not necessarily 
in the last 4 months.
    Senator Feinstein. Of the 140?
    Mr. Adams. Yes. First of all, Senator, those regulations, 
they only applied to petitions filed after that particular 
date. But let me hasten to add that even before those 
regulations went into effect, we routinely asked U.S. 
attorneys' offices to contact victims in cases where there were 
victims. Many of those 140 cases involved situations where 
there were no victims, drug cases. Society is clearly a victim, 
but that is not the type of case contemplated by those 
regulations.
    Senator Feinstein. Mr. Holder, do you agree with that that 
in eight or ten cases the victim was notified by your 
Department?
    Mr. Holder. I simply don't know, Senator. Those are the 
kinds of things that typically happen. The Pardon Attorney's 
Office and perhaps people on my staff might be involved, but I 
simply don't know.
    Senator Feinstein. I think, Mr. Chairman, I would very much 
appreciate in writing some indication of on how many occasions 
was this section of the rules actually followed, if we might 
submit that as a written question to them.
    Senator Specter. Is that feasible to obtain, Mr. Adams?
    Mr. Adams. Sure, we can give you--
    Senator Specter. Well, then consider it a request.
    Mr. Adams. We can give you a listing of cases in which we 
contacted victims. I would request, though, that we not be 
constrained to start on September 28 because we had been doing 
that before the regulations went into effect.
    Senator Feinstein. Well, since the rule went into effect, I 
am just curious, has it been followed, and when it wasn't 
followed, why not.
    Mr. Adams. When there is a victim in the case and we are, 
as the rule says, seriously considering the case, believe the 
case might have some merit, or for other reasons--
    Senator Feinstein. So you are prepared to say in every case 
where there are existing victims, the rule has been followed?
    Mr. Adams. No, I am not prepared to say that because there 
are many cases, Senator, and this is an important point, where 
there were victims, but we do not believe the case merits a 
pardon or a commutation. We believe the case is of such lack of 
merit that it is not even worth the time to go the United 
States attorney's office to--
    Senator Feinstein. Of those cases where there was merit--
for example, in the FALN case, no victim was contacted. That 
was certainly a case that you probably thought perhaps didn't 
have merit, but you are saying then you wouldn't contact the 
victim?
    Mr. Adams. Not necessarily. If I believed the case did not 
have merit and I was going to do a summary denial of that--
propose the case be handled by way of summary denial, I would 
not ask the U.S. attorney--first of all, I wouldn't ask the 
U.S. attorney for his views anyway in most cases because it is 
not worth getting them involved. It is a waste of their time. 
It is also not worth going to victims in the vast majority of 
cases where I believe routine, quick denial of the petition is 
warranted.
    Senator Feinstein. I want to speak just for a moment, if I 
might, about a California case in which there was clearly a 
campaign for a commutation. Carlos Vignali received a 15-year 
sentence for his role in a drug operation that moved 800 pounds 
of cocaine from California to Minnesota so it could be 
converted to crack. He petitioned for commutation of his 
sentence.
    The relevant United States attorney in Minnesota strongly 
opposed the petition, and Vignali's trial judge, whom the 
Department of Justice did not consult, says that if asked, he 
would have opposed the petition. The same judge supported a 
couple of other requests for clemency. Ultimately, the 
President commuted Mr. Vignali's sentence to time served, about 
6 years.
    Did you make a recommendation in this case?
    Mr. Adams. Yes, we did, Senator.
    Senator Feinstein. I take it I am not supposed to ask what 
that recommendation is because of executive privilege, but you 
did make a recommendation in that case?
    Mr. Adams. Yes, Senator, we did.
    Senator Feinstein. Could I ask one more quick question?
    Senator Specter. Sure.
    Senator Feinstein. Why didn't your staff contact the trial 
judge in the case?
    Mr. Adams. I am not prepared to discuss what we did in 
specific cases and specifically with respect to the Vignali 
case, but let me attempt to deal with your question more 
generally.
    When we go to the United States attorney's office for his 
or her opinion in a case, be it a commutation case or a pardon 
case, we routinely ask that that office contact the sentencing 
judge on our behalf. And we tell them if they don't want to do 
that, let us know and we will contact the sentencing judge.
    We go to the U.S. attorney's office for a variety of 
reasons. One, the case may appear to be meritorious or, two, we 
just need more information from the U.S. attorney's office. The 
pre-sentence report is incomplete. The petitioner has made 
unusual claims that can only be answered by the United States 
attorney or his staff.
    In most cases, if we ask the U.S. attorney to contact the 
sentencing judge, he does so. Once in a while, he doesn't. If 
we believe that the situation is such that we have enough 
information in my office to make our report and recommendation 
without contacting the sentencing judge, we wouldn't.
    Senator Feinstein. Thank you.
    May I enter into the record the appellate brief in this 
case, please?
    Senator Specter. Absolutely, Senator Feinstein.
    Senator Feinstein. Thank you very much. My time is up.
    Senator Specter. And consider it a request from the 
committee, Mr. Adams, that Senator Feinstein has made. If it is 
administratively feasible, if you could list those which you 
have not contacted victims where you conclude it is a matter 
that is unmeritorious and unlikely to be pursued, that would be 
fine.
    Senator DeWine?
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Holder, I want to give you an opportunity to respond to 
the written statement testimony from Jack Quinn. You have 
touched on some of this already, but I want to specifically 
deal with some of his comments.
    This is from the testimony of Jack Quinn that has been 
submitted: ``I personally notified Mr. Holder in his office on 
November 21, 2000, that I would be sending a pardon application 
directly to the White House. I told him then that I hoped to 
encourage the White House to seek his views. He said I should 
do so.''
    Later on in the testimony he says, ``On December 11, 2000, 
I delivered a two-inch-thick pardon application to the White 
House, more than 5 weeks before the pardon was granted on 
January 20. While the application was under consideration, I 
wrote Mr. Holder on January 10, 2001, and asked him to weigh in 
at the White House with his views.''
    Later in the testimony it says, ``Still later, I called Mr. 
Holder the night of January 19 and told him that Mr. Rich's 
pardon was receiving serious consideration at the White House, 
and that I understood he would be contacted before a decision 
would be made at the White House.''
    Could you comment on those?
    Mr. Holder. Yes.
    Senator DeWine. Walk us through the dates and tell us where 
your recollection is the same as Mr. Quinn's and where it might 
not be.
    Mr. Holder. With regard to the November 21 notification, I 
guess you might call it, from Mr. Quinn, I don't have any 
recollection of that, but I don't doubt his assertion there 
that he said that. We had a meeting in my office that day on 
another matter, as I indicate in my statement. So I assume that 
what he says is, in fact, accurate that he did tell me about 
his intention to file something with the White House.
    That would have been something that would not have been 
awfully remarkable in my mind because I worked under the 
assumption that anything filed with the White House would 
ultimately find its way to the Justice Department. I had been 
told that, in fact, something was filed on December 11, and 
again I assume--that is, filed with the White House; I again 
assume that is true.
    Senator DeWine. But excuse me. Staying with the 21st, you 
don't therefore recall saying anything to him, since you don't 
recall the conversation?
    Mr. Holder. No, but again I am not saying--I am saying I 
don't recall it. I don't have any basis to dispute what he 
says. I just don't recall the conversation.
    The January 10th letter is something, I guess, that Mr. 
Adams touched on in his opening statement. That is a letter 
that I never saw. It apparently got into the Justice Department 
mail system, was sent to the Pardon Attorney for a response. 
There is an indication that it was sent to the Deputy Attorney 
General's office, I think, for notification or something along 
those lines, but I never actually saw that letter, the January 
10th letter, which I think contained or attached a letter from 
Mr. Quinn to the President on January 5th.
    I did have a call with Mr. Quinn on January 19, in which he 
indicated to me that I would probably be receiving a call from 
the White House shortly thereafter. And I indicated to him, I 
think, as I said in my written remarks, that based on his 
recitation of the facts, I was not strongly opposed to the 
pardon request.
    But what I want to make clear is that at all times in my 
interaction with this, this was not something that was for me a 
priority matter because I didn't think this was something that 
was likely to happen, given the fact that Mr. Rich was a 
fugitive. In the time that I have been Deputy Attorney General, 
I am aware of only one case in which a pardon request was 
granted to a fugitive.
    Senator DeWine. Let me make sure I understand the facts. So 
you did know that he was a fugitive under the facts as recited 
to you by Mr. Quinn?
    Mr. Holder. Yes, I knew he was a fugitive.
    Senator DeWine. You knew he was a fugitive, and still you 
said you wouldn't necessarily have any objection to that? 
Didn't the fact that he was a fugitive bother you?
    Mr. Holder. Sure, it did, but assuming--again, what I said 
to the White House counsel ultimately was that I was neutral on 
this because I didn't have a factual--I didn't have a basis to 
make a determination as to whether or not Mr. Quinn's 
contentions were, in fact, accurate, whether or not there had 
been a change in the law, a change in the applicable Justice 
Department regulations, and whether or not that was something 
that would justify the extraordinary grant of a pardon.
    Senator DeWine. So the fact that he was a fugitive did not 
take it out of the realm of possibility? You didn't say, well, 
gee, he is a fugitive, therefore I wouldn't be in favor of 
this. You came down neutral based on the facts as given to you 
by Mr. Quinn. I just want to make sure I understand your 
rationale here or your thought process.
    Mr. Holder. Essentially, what I was trying to say--what I 
tried to convey was that I didn't have a basis to make a 
determination. Again, assuming that what Mr. Quinn said--I 
didn't reflexively -I did not reflexively say that I was 
opposed to this because he was a fugitive, having had that 
experience with, I guess, Mr. Preston King, who was a fugitive 
and who ultimately was granted a pardon that I supported. But I 
did not think, given the fact that he was a fugitive, that this 
was ever a matter likely to be successfully concluded from Mr. 
Rich's perspective.
    Senator DeWine. Thank you, Mr. Chairman.
    Senator Specter. Thank you, Senator DeWine.
    Senator Kohl?
    Senator Kohl. Thank you, Senator Specter.
    Mr. Adams and Mr. Holder, one of the questions this raises 
which resonates across the country today is fairness, the 
ability of the average citizen to have equal access to power 
and to government, to redress, to have their grievances 
considered. Of course, in theory, that is what America is all 
about.
    We all know that sometimes reality is not the same as 
theory, but our job here, your job and our job, is to do 
everything we can to bring that as close to possibility as we 
can in this country. And there probably isn't one person across 
this country today who is familiar with this case who doesn't 
think that it is a question of power, connection, money, and 
that, in fact, is how this pardon occurred. Without the power, 
the connection, the money, there is no doubt that this pardon 
would not have occurred. At least that is the perception across 
the country.
    Now, what is your response? You are part of the system. I 
don't think you can just walk away from it, nor do I think you 
want to. So what do you say to the people of our country who 
are saying this stinks because if you are rich or powerful or 
well-connected, you can get something done, and if you are not, 
you can't get anything done? So the Government is not a 
Government of the people, by the people, for the people.
    Mr. Holder. Well, let me take a stab at--well, I am sorry, 
Senator.
    Senator Kohl. Mr. Holder, go ahead.
    Mr. Holder. Just speaking on behalf of what happens in the 
Justice Department, and certainly speaking specifically about 
the work of Mr. Adams, his predecessors and the people who work 
in the Pardon Attorney's office, I think the American people 
should be reassured that they make their determinations and 
recommendations based only on the information that is in front 
of them. Big guys and little guys, I think, get treated equally 
within the Pardon Attorney's office, and I am proud of the work 
that they have done. I appointed Mr. Adams to be Pardon 
Attorney. He is a capable guy and I think has done a very good 
job.
    Beyond that, it is hard to say what goes into the final 
determination that any President makes in deciding whether or 
not to grant a pardon, who the President listens to, what 
influence a particular person might have. I think the thing 
again that I am most familiar with is what happens within the 
Justice Department aspect of the process, and I think there 
people are treated the same.
    Mr. Adams. I really can't add much to that, Senator. We 
obviously -I hope it is obvious--we do treat everybody the 
same. I am not at all interested in--
    Senator Kohl. I guess I am not so much pointing a finger at 
you because, as you have pointed out, there is a system in 
place here and we know how the system works.
    Are you prepared to say that in terms of fairness and 
access, which all people should theoretically have the same, in 
fact, in this case that didn't happen at all?
    Mr. Holder. Again, it is hard to say. I don't know what 
precisely motivated the President and whom he spoke to, what 
were the things that were going through his mind as he decided 
to look upon the pardon request favorably.
    And it is true--I mean, I am not naive and I don't want to, 
you know, give the American people a bill of goods. Connections 
obviously help. I mean, there are--to be very honest with you, 
we get requests or we get expressions of support from Members 
of Congress for people who are perhaps better connected than 
the average guy.
    But I think what the folks in the Pardon Attorney's office 
have done is a good job in really trying to separate that from 
the substance and really ought to be the motivating things in 
deciding what kinds of recommendations they are going to make. 
But, yes, there is no question that certain people have an 
ability to get more, quote, unquote, ``influential people'' to 
weigh in on their behalf. I think that is true.
    Senator Kohl. Would you say that in this case, being as 
conspicuous as it has become, the American people to need to 
know from whomever, however, what that justification for this 
pardon was? Do you think that people at the highest level 
should speak out and help to put this case to rest by 
justifying the pardon?
    Mr. Holder. Let me figure out a way that I can respond to 
this question and de-dynamite it perhaps. I mean, I think that 
certainly the American people, I guess, want to know ultimately 
what happened here, and to the extent that that could be 
explained, I think we would be the better off for it.
    But, you know, the former President--no President, I think, 
has an absolute duty to explain those kinds of decisions. It 
seems to me that the Constitution, in making the power as 
unfettered as it is, in some ways anticipates the notion that 
you would want to have a President exercising that power 
obviously responsibly, but without any kind of collateral 
fears. I think that is probably the best answer I could give.
    Senator Kohl. Mr. Adams, do you want to say something?
    Mr. Adams. I think, Senator, what you are asking for is 
sort of my--are you asking for my opinion of the whole--
    Senator Kohl. Yes, of course.
    Mr. Adams. Well, I mean I really have to--I do have an 
opinion on what happened in this situation. But, you know, I 
have to tell you, Senator, I am here as a representative of the 
Justice Department and to give you facts and information that 
came to my attention. And I just don't think it is appropriate 
for me to express my personal--
    Senator Kohl. What is your opinion? We are interested in 
your opinion.
    Mr. Adams. I just don't think it is appropriate for me to 
give an opinion on that question of--the question you asked. I 
just would prefer not to give a personal opinion, given the 
position that I held then and hold now.
    Senator Kohl. Well, why wouldn't you want to give us your 
opinion?
    Mr. Adams. Well, as I indicated, Senator--Mr. Holder has a 
comment.
    Mr. Holder. Senator, maybe if I could just interpose, I 
mean Mr. Adams is a career Justice Department employee, and he 
is a person who I am sure has called these things as he has 
seen them. And regardless of what his personal opinion is, he 
is a good lawyer, and good lawyers have to frequently do that, 
put aside their personal opinions and make determinations based 
only on the facts and the law.
    I think I can understand how he feels uncomfortable. I was 
a Justice Department lawyer myself, a trial lawyer, for 12 
years. And I would ask, to the extent you would see it would be 
appropriate, to not make him express a personal opinion, and to 
the extent we can restrict the questioning of him to the way in 
which he performed his official function. But it is only a 
request, I think, that I would make actually on behalf of all 
the career people within the Department.
    Senator Kohl. Well, you are a Pardon Attorney in the 
Justice Department.
    Mr. Adams. That is correct.
    Senator Kohl. So when pardons occur, Mr. Adams, you have an 
interest in what happens. Forget about anything else. You are 
an American, you care. You are an important person in the 
process and you like to see pardons occur in an orderly way 
just because that is a man taking pride in his job, and I would 
sure that would describe you.
    Mr. Adams. That is basically correct, sure.
    Senator Kohl. And in this case, do you feel good about that 
pardon?
    Mr. Adams. All I can tell you, Senator, is that this case 
was clearly not--this was a very unusual situation. The Rich 
and Green case were not handled anything approaching the normal 
way. I guess I have a parochial interest in seeing that they--I 
would prefer that things be handled the normal way. But when a 
President, for whatever reason, decides not to handle things in 
an orderly -in a way in conformity with the regulations, there 
is very little that I can do about it.
    Senator Kohl. You may feel terrible about it, which you 
obviously apparently do, but you are pointing out to us there 
is nothing you can do as a matter of fact.
    Mr. Adams. That is correct. If the President decides to not 
follow the procedures, as is any President's right--in other 
words, if he doesn't want input from the Justice Department, if 
he doesn't want an investigation from my office, you know, I 
can't force one down his throat.
    Mr. Holder. One thing I would like to add, Senator, in 
terms of the big guy/little guy thing and questions of 
influence, a fair number of the pardons that were granted were, 
I think as maybe Senator Feingold indicated, pardons of people 
who were serving extremely long drug sentences. These were by 
no stretch of the imagination people who were wealthy or 
connected, and yet there were people who advocated on their 
behalf.
    And so as I said before, I think I have to concede that 
certainly there are certain people who have an ability to get 
people of influence to lobby on their behalfs. But the fact 
that you don't have that does not necessarily mean that a 
pardon request will be unsuccessful.
    Senator Kohl. Thank you, thank you much.
    Senator Specter. Thank you, Senator Kohl.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    Just for the record, Mr. Holder, about the time you became 
the Acting Attorney General, a very close friend of my mine 
said, is that a good idea, given the fact that Eric Holder was 
the No. 2 person in the Clinton Department of Justice? I said, 
yes, I think it is; I have had very professional dealings with 
Eric Holder and I have no doubt that he will acquit himself 
properly in that role.
    And it is in that context that I am really disappointed in 
the inaction that characterized your treatment of this matter 
during the time that you were aware of it. I am speaking about 
the Rich pardon primarily occurring on the 19th and the 20th of 
January.
    You excuse your failure to pay more attention to this 
because you testified you assumed that Rich's fugitive status 
would result in a denial. Is that correct? That is what you 
just testified to.
    Mr. Holder. Well, that among other things. I used that as 
one of many things that caused my inaction in this pardon.
    Senator Kyl. And yet that fugitive status and the other 
factors were not sufficient to cause you to come down in 
opposition to the pardon when you were specifically asked by 
the White House, by Beth Nolan. In fact, you expressed 
neutrality, even leaning favorable, notwithstanding your 
knowledge that he was a fugitive and notwithstanding the fact 
that you knew at that point that it had not gone through 
regular Justice Department process.
    Mr. Holder. Well, I mean again the leaning favorable aspect 
of that recommendation was conditional, if there were a foreign 
policy benefit that we would reap from the grant of the pardon. 
I had been told that Prime Minister Barak had weighed in 
heavily, or something along those lines, strongly in favor of 
the pardon. And it was on that basis that I went from neutral, 
which was a term that I mean to imply -I didn't have enough of 
a factual background to decide the case one way--or to make a 
recommendation one way or the other, but that if there were a 
foreign policy benefit that might be reaped or that could be 
reaped, I would lean favorably.
    Senator Kyl. Those benefits would be outside of the purview 
of your jurisdiction. Your jurisdiction pertained to the facts 
relative to the alleged crime and the facts relative to the 
fugitive status, conviction, if there is one, time served, and 
so on. Is that correct?
    Mr. Holder. Well, no. I mean, the Justice Department is not 
a place that only deals with things within our borders. The 
Attorney General and I met on a regular basis with the National 
Security Advisor. We were involved in a great many foreign 
policy discussions, as other departments in the executive 
branch are.
    Senator Kyl. With respect to possible solutions to prevent 
this kind of issue arising in the future, wouldn't you agree 
that confronted with the knowledge that this application had 
not gone through regular Justice Department channels, 
confronted with the knowledge that you knew very little about 
it as a matter of fact, and that you assumed that the facts 
were so negative that it wouldn't even be strongly considered 
to be granted by the White House, then wouldn't you agree that 
it would have been better for you to say, if you are telling me 
there is an international factor, then that is something you 
have to weigh, but you need to know that apparently there was 
apparently a deliberate effort to avoid vetting this in the 
proper way through regular channels in the Justice Department, 
and that the President--to Beth Nolan now--the President should 
be advised of that because he may be under the impression that 
this has been properly vetted because of your communication 
with me?
    Mr. Holder. At the time, I didn't know that there had been 
an effort or whatever to avoid the vetting. I assumed, in fact, 
that there were conversations going on at a staff level about 
this matter in the same way that staff-level conversations I 
found out subsequently were going on about New York-related 
cases.
    Senator Kyl. Could I just interrupt you there, though? It 
is a reasonable assumption that somebody would have told 
someone, and yet it is now the last minute and this is just 
before the administration is going out of office. You are being 
asked for your recommendation and the usual procedure is for a 
whole raft of documents to be submitted to you, a whole series 
of recommendations from the Pardon Attorney, and so on, and you 
are the one that makes the final recommendation, then, on this 
matter.
    And you had none of that, so you knew at that time anyway 
that whatever conversations may have occurred within the 
Justice Department that the proper procedures had not been 
followed because you didn't have a recommendation from those 
below you. You had no basis upon which to make a recommendation 
to the White House, other than what Quinn might have told you.
    Mr. Holder. Yes, and what I--my interaction with the White 
House I did not view as a recommendation, because you are 
right. I didn't have the ability to look at all the materials 
that had been vetted through, the way we normally vet 
materials.
    And as I indicated in my written testimony, if there were 
ways in which I would redo this, there were certain things I 
would have done differently. And I think the one thing that 
would have changed this whole thing, if I had said to the 
person on my staff, what is the status of the Rich matter, 
again assuming that there were these conversations that were 
going on--if I had said that to her and found out from her that 
there were no ongoing conversations, that I think would have 
fundamentally changed the way in which the Justice Department 
approached this case generally and how I approached the case 
specifically. But I did not do that and I admit that.
    Senator Kyl. You acknowledge that as a failure on your 
part.
    Just a last question. If Jack Quinn says that he took from 
your conversation with him and your conversation with Beth 
Nolan enough of a positive recommendation, or at least not a 
negative reaction, to be able to argue to the President that he 
had run it by Justice or run it by you, or words to that 
general effect, creating the impression with the President that 
you approved of it, would you disagree with that 
characterization of Mr. Quinn?
    Mr. Holder. Well, I think running it by Justice is actually 
a pretty good description of what happened. Somebody at the 
White House had to know that whatever I said was based on a 
process that did not allow me to have the kinds of materials 
that Mr. Adams normally gave me. I mean, somebody in the White 
House had to know this.
    Again, I don't know if it is inadvertence, design, or 
whatever, but somebody had to know that any recommendation or 
comment from Holder is not based on the kinds of materials that 
he normally has access to. The White House never sent to us the 
pardon application that had been filed with them.
    As Mr. Adams indicated, his interaction with them was at 1 
or 12, whatever it was, in the morning. So for people to think 
that the Deputy Attorney General is speaking on behalf of the 
Justice Department in the way that he normally does when it 
comes to making pardon recommendations, given this record, I 
don't think is supported by the facts. And there obviously had 
to be people in the White House who knew that.
    It might not have been the President. You know, it might 
not have been the President, but at least somebody, it seems to 
me, in the chain had to know that I didn't have in front of me 
all the normal materials that I would have had in expressing a 
recommendation.
    Senator Kyl. Thank you, Mr. Chairman.
    Senator Specter. Thank you very much, Senator Kyl.
    Thank you very much, Mr. Holder and Mr. Adams. If you 
gentlemen would step back but remain for the balance of the 
hearing, we would appreciate it. There may be some follow-up 
question we would like to ask.
    I would like to combine the second and third panels because 
we are running if late, if Mr. Quinn, Mr. Becker, Mr. Gormley 
and Mr. Schroeder would step forward, please.
    Welcome, gentlemen. Thank you very much for coming in. We 
make it a practice to swear in fact witnesses, not expert 
opinion witnesses, so we will proceed at this time.
    Professor Benton Becker comes to this panel with a very 
distinguished record. He is at the University of Miami now. He 
has had important Government positions, including being counsel 
to former President Gerald Ford at the time the pardon was 
granted to President Nixon.
    The clock will be set at 7 minutes for the witnesses and 5 
minutes for the Senators.
    Professor Becker, we will call on your first.

 STATEMENTS OF BENTON BECKER, PROFESSOR OF CONSTITUTIONAL LAW, 
          UNIVERSITY OF MIAMI, PEMBROKE PINES, FLORIDA

    Mr. Becker. Thank you, Mr. Chairman. I am pleased to have 
this opportunity to appear before this committee to comment on 
the language of the Constitution that provides at Article II, 
section 2, that ``The President of the United States shall have 
the power to grant reprieves and pardons for offenses against 
the United States, except in cases of impeachment.'' That is 
all that the text of the Constitution has to say on the subject 
of pardons.
    Twenty-7 years ago, in the early days of the Ford 
administration, I was honored to undertake the task of 
researching the historical precedents pertaining to 
Presidential pardons, seeking to determine the constitutional 
scope of Presidential pardons. Little constitutional change has 
occurred in this Nation since 1974.
    With a very narrow, limited exception, the Presidential 
power to issue pardons is indeed absolute, and under almost all 
circumstances not subject to review by the judicial branch. The 
sole exception whereby a Presidential pardon may--and we have 
never had that occur in our country--be the subject of judicial 
review pertains to instances where a grant of a Presidential 
pardon concurrently satisfies the elements of and the 
evidentiary requirements of a Federal bribery or other Federal 
acceptance of gratuity statutes.
    I do not represent to this committee that that is the case 
in the Rich and Green pardons. Such circumstances have been 
most appreciatively non-existent in our country. But 
approximately 20 years ago, in the State of Tennessee, 
Tennessee successfully suffered through litigation disputing 
the constitutionality of initiating criminal prosecution 
against its then seated Governor in a criminal case, wherein it 
was asserted that the Governor of the State of Tennessee 
regularly engaged in the wholesale sale of pardons and 
commutations.
    I am advised that this committee is considering what 
legislative enactments, if any, it might undertake to prohibit 
or to deter future Presidents from issuing Presidential pardons 
similar to those granted to Messrs. Rich and Green.
    Initially, I would affirm that any constitutionally valid 
legislative enactment that undertakes to restrict the 
President's pardoning power under Article II, section 2, must 
be enacted as a constitutional amendment. A legislative 
enactment adopted by a majority of both Houses of Congress and 
signed by the President restricting the Presidential pardoning 
power in any manner would clearly be unconstitutional.
    Therefore, Senators, any change in the law on the subject 
of Presidential pardons must, by necessity, require a change in 
the Constitution of the United States. I do not recommend 
passage of a constitutional amendment on this subject. A 
proposed constitutional amendment granting congressional or 
senatorial approval or veto authority over Presidential pardons 
is, in my view, unwise and unnecessary.
    The Founding Fathers placed that absolute power, albeit 
undemocratic power, in the Constitution, in recognition of the 
fact that governmental adherence to the letter of the law does 
not in all instances result in justice. And to hedge against 
those instances of injustice a non-reviewable pardon power was 
granted to the President. There is little doubt in my mind that 
that power was not meant for people like Messrs. Rich and 
Green, but that does not, in my view, justify tampering with or 
cluttering our Constitution.
    Mr. Chairman, I would simply ask that the remainder of my 
statement be admitted into evidence.
    Senator Specter. Without objection, your full statement 
will be made part of the record.
    Mr. Becker. Thank you, sir.
    [The prepared statement of Mr. Becker follows:]

Statement of Benton Becker, Professor of Constitutional Law, University 
                   of Miami, Pembroke Pines, Florida

    I am pleased to have this opportunity to appear before the 
Judiciary Committee of the US Senate to discuss Article II, Section 2 
of the United States Constitution, which provides, ``President shall 
have power to grant Reprieves and Pardons for offenses against the 
United States except in cases of impeachment.'' That is all the text of 
the Constitution has to say on the subject of pardons. Twenty-seven 
years ago, in the early days of the Ford Administration, I undertook 
the task of researching the historical precedents pertaining to 
presidential pardons seeking to determine the constitutional scope of 
the pardoning authority of Presidents. Little constitutional change has 
occurred on this issue since 1974.
    With a very narrow, limited exception, the presidential power to 
issue pardons is absolute, and under almost all circumstances, not 
subject to review by the judicial branch. The sole exception, whereby a 
presidential pardon ``may'' (such exception, fortunately having never 
occurred in history) be the subject of judicial review pertains to 
instances whereby the grant of a presidential pardon concurrently 
satisfies all elements of, and the evidentiary requirements for, 
federal bribery or other criminal statutes. Should such occur, and I do 
not represent that the Rich/Green pardons constitute such an instance, 
only after a prudent determination that solid unimpeachable evidence of 
criminal wrongdoing exists.
    Such circumstances are, and have been, thankfully, almost non-
existing. Approximately twenty years ago, the State of Tennessee 
successfully suffered through litigation disputing the 
constitutionality of initiating criminal prosecution action against its 
seated Governor in a criminal case wherein it was asserted that the 
Governor of the State regularly engaged in the wholesale sale of 
pardons and commutations. May our nation never be made to suffer 
similar humiliation.
    I am advised that the Senate Judiciary Committee is considering 
what legislative enactment, if any, it might undertake to prohibit and/
or deter future Presidents from issuing presidential pardons similar to 
those granted to fugitive financiers Marc Rich and Pincus Green. 
Initially, I would affirm that any constitutionally valid legislative 
enactment that undertakes to restrict the President's pardoning power 
under Article 13, Section 2 must be enacted as a Constitutional 
Amendment. A mere legislative enactment, adopted by a majority of both 
houses of Congress and signed by the President restricting the 
presidential pardoning power in any manner would be unconstitutional. 
Therefore Senators, any change in the law on the subject of 
presidential pardons must, by necessity, require a change in the 
Constitution of the United States.
    I do not recommend passage of a Constitutional Amendment on this 
subject. A proposed Constitutional Amendment granting Congressional or 
Senatorial approval or veto authority over presidential pardons is, in 
my view, unwise and unnecessary. The Founding Fathers placed this 
absolute power, albeit undemocratic power, in the Constitution in 
recognition of the fact that governmental adherence to the letter of 
the law does not, in all instances, result in justice. And, to hedge 
against those instances of injustice, this non-reviewable pardon power 
was granted to the President. There is little doubt in my mind that 
this power was not meant for people like Misters Rich and Green, but 
that does not justify tampering with. . . or cluttering, the 
Constitution.
    My experience with the presidential pardoning power dates back to 
1974 and was at the time interwoven with the question of ownership and 
possession of the records of the Nixon presidency. On August 9, 1974, 
Richard Nixon departed the White House to San Clemente. He left behind, 
in neatly packaged and sealed boxes stored on the forth floor of the 
Executive Office Building, five and one-half years of accumulated 
records, papers and tapes, including all tape recordings from the Oval 
Office. At noon on August 9, 1974, Gerald R. Ford became President by 
prearranged timing of the Nixon resignation. It was forcefully argued 
by many in the White House staff that the newly sworn-in President was 
only a custodian or bailee of the Nixon records, papers, and tapes left 
behind in the White House. Within twenty-four hours after Mr. Nixon's 
departure, President Ford's inherited Chief of Staff, Alexander Haig, 
reported that the former President had landed successfully, had 
unpacked his bags and had telephoned Haig demanding the immediate 
transmittal of all ``his'' records, papers and tapes.
    President Ford directed his Attorney General, William Saxbe, to 
instruct the Department of Justice to prepare a legal opinion on the 
subject of who, Richard Nixon or the US government, owned the records, 
papers and tape recordings accumulated during the five and half years 
of the Nixon administration. And furthermore, if ownership was 
determined to have been
    vested with the former President, what right, if any, did President 
Ford have to refuse to transfer the records, papers and tapes to San 
Clemente?
    The Department of Justice's opinion presented to President Ford 
within one week, concluded that primarily through custom and tradition, 
and only partially through law, the records, papers and tape recordings 
accumulated during the presidential term of the former president were 
the exclusive personal property of the former President and that there 
was no legal justification to refuse their transfer to the former 
President. I could not then, and I have not in the succeeding twenty-
seven years, found either fault or error in the factual or legal 
conclusions contained in the Justice Department opinion. Nonetheless, 
Robert Hartmann's and my advice to President Ford was to ignore the 
Justice Department opinion and to refuse the Nixon transmittal request. 
My advice, rendered to a two-week occupant of the Oval Office, was to 
disregard (indeed, to disobey) the law, and retain possession of the 
records of the Nixon administration at all costs. President Ford sought 
to create a device whereby the Nixon records could be held by the Ford 
White House, in effect placed in a holding pattern, and thereby 
providing an opportunity for the courts and the Congress to act. 
Richard Nixon's subsequent execution of the Deed of Trust transferring 
the records and tapes to the General Services Administration served as 
that holding device for the Ford presidency.
    President Ford, like the rest of the nation, had been given only 
twenty-four hours for transition before assuming the presidency. It is 
fair to note that virtually every Nixon White House staff person 
inherited by President Ford urged President Ford to comply with the 
Justice Department's recommendation to send all documents, papers, and 
tapes to their ``rightful owner'' in San Clemente. Much was said in the 
Oval Office at that time, some catchy and not so catchy. To his credit 
and courage, President Ford ignored the advice of his own Justice 
Department, his Chief of Staff and his newly inherited White House 
Staff. He ordered that no records, papers and tapes be sent to San 
Clemente.
    I was asked by President Ford to research the scope of the 
presidential pardoning power.
    Several legal issues were obvious and easily discernible; other, 
like land mines concealed in American jurisprudence, awaited an 
opportunity to explode. Those issues included
1. Presidential authority to grant a pardon pre-conviction, and in the 
        case of Richard Nixon, a pardon pre-indictment. The precedents 
        were clear on this question both at common law and in our 
        judicial history. No constitutional prohibition prevented pre-
        indictment pardons, in fact, they appear often in our history.
2. Presidential authority to grant pardon without specifically 
        delineating the precise federal criminal statutes for which the 
        recipient had been pardoned. If a person receives a pardon and 
        thereafter is prosecuted, the charged individual virtually 
        pleads the pardon at bar as a defense to the pending charge, 
        however, if a pardon defense is plead, it is incompetent under 
        the pleader to point with specificity to his or her pardoned 
        act and statutes. Failing such specificity of proof by the 
        accused, the defense will fail. Nonetheless, the precedents 
        were clear. An executive grant of a pardon does not require a 
        specific recitation of statutes or criminal acts. By my reading 
        of the news accounts of the large grouping of one hundred and 
        forty pardons in one document signed by President Clinton, I 
        read that some twenty-plus pardoned individuals (not Misters 
        Rich or Green) filed no pardon applications. . . causing the 
        validity of those pardons, in my mind, to be questionable. The 
        question is, absent a pardon application, or any other record, 
        what was the individual pardoned for?. . . and within what 
        period of time?
3. Whether a presidential pardon granted to Richard Nixon would, in 
        fact, accomplish its preventive prosecution purpose. The 
        reasoning, partly political and partly legal, was elementary; 
        what purpose would be served by pardoning Richard Nixon, if 
        thereafter the law allowed for the criminal prosecution of 
        Richard Nixon by sovereigns other than the United States? In 
        fact, that was precisely what the law allowed. The law of this 
        nation is that a pardon issued by the President protects 
        individuals from subsequent prosecution for the pardoned acts 
        only, and only in federal courts for federal crimes.
    Simply stated, Richard Nixon's September 1974 pardon did not serve 
as a bar against any subsequent prosecution against him that might have 
commenced, and could have commenced in, for example California. 
California could have elected to proceed, post-pardon, with a criminal 
prosecution of Richard Nixon, alleging the former president conspired 
with others to violate California's criminal burglary statute in the 
matter of the Los Angeles break-in by the White House Plumbers of 
Daniel Ellsberg's psychiatrist's office.
    Even though one of the charged defendants in that would be 
prosecution may have possessed a blanket presidential pardon, sovereign 
states are sovereign, and precedent upon precedent allows subsequent 
state prosecutions of individuals holding federal pardons. The 
sovereign states of this Union are free to elect what consideration, if 
any, their courts will afford to federal pardons. Many states provide 
an informal degree of comity to recipients of federal pardons, but the 
vast majority of states, including California, jealously refuse to 
dilute their exclusivity and sovereignty of this issue.
    Although each of these issues provided me with some significant 
measure of sleeplessness at the time, with the passing of twenty seven 
years, they have evolved to the exalted statues of academic discourse. 
Some would argue that is where these issues have always belonged.
    And that is, in my view, where the question of constitutionally 
amending the pardoning process belongs. That process ought not be 
politicized, through the inclusion of Congressional approval or veto 
authority. It ought not be trivialized by mandatory preconditions 
requiring the maintenance of specific types of memos and records. I 
urge this Committee to trust history, and our presidential historians, 
to judge the propriety of presidential grants of pardon; and to trust 
the judgement and the good sense of the American people. I urge this 
Committee to resist the momentary temptation to unnecessarily clutter 
the Constitution.

    Senator Specter. We will proceed with Professor Gormley at 
this time, Professor of Law at Duquesne University School of 
Law. He specializes in constitutional law, civil rights 
litigation, First Amendment legal writing, and property, a very 
extensive background, with a J.D. from Harvard Law School in 
1980 and a B.A. from the University of Pittsburgh summa cum 
laude.
    We welcome you here, Professor Gormley, and look forward to 
your testimony.

  STATEMENT OF KEN GORMLEY, PROFESSOR OF CONSTITUTIONAL LAW, 
         DUQUESNE UNIVERSITY, PITTSBURGH, PENNSYLVANIA

    Mr. Gormley. Thank you very much, Senator Specter. I 
appreciate your invitation and the invitation of Senator Hatch 
and the entire committee to be here.
    I have a modest degree of expertise in the subject of 
pardons. I am the author of the biography of Archibald Cox, the 
Watergate special prosecutor, and, flowing from that, became 
interested in the Ford pardon of Richard Nixon and organized a 
program at Duquesne University in 1999 on the subject of the 
pardon on the 25th anniversary.
    After an admittedly short period of time to reflect and 
research for today's hearing, I still have to say I find myself 
hesitant when it comes to any constitutional revision of the 
Presidential pardon power.
    First, if you take a look at the large number of pardons 
granted in our country's history, over 13,000 in the 20th 
century alone, there are a surprisingly small number that have 
come under attack as illegitimate. There are plenty of colorful 
ones, some controversial, some allegedly designed to further 
the political or personal interests of a President.
    But I am not sure there are enough, or enough egregious 
ones to justify an amendment, no matter how one constructs it. 
Unless there is a clear track record of abuse or dysfunction, I 
think, over many years and many administrations, I would be 
inclined to err on the side of not upsetting the constitutional 
apple cart.
    As I understand it, one consideration at this time is an 
amendment that would give Congress power to enact rules by 
which the President or the Department of Justice would have to 
adhere in dispensing pardons, and that would certainly prevent 
the President from bypassing DOJ procedures, as arguably as we 
just heard occurred in the case of several of President 
Clinton's pardons, and indeed some other pardons in the past 30 
years or so.
    I worry, however, that that kind of a constitutional 
amendment would do serious harm to separation of powers even if 
it was limited to simply procedures, dealing with procedures by 
which the President and Department of Justice were required to 
process pardons, because it could still be used, in effect, I 
think, Senators, to wrestle a core executive function away from 
the President. We could discuss that in the question period if 
you would like.
    The most attractive alternative, at least on the surface, 
would be the so-called Mondale amendment that you described, 
Senator Specter, that was introduced shortly after President 
Ford's pardon of Richard Nixon in 1974. Something like that 
would certainly avoid the most serious constitutional concerns. 
It would keep the pardon power lodged in the executive branch. 
It would presumably limit Congress' involvement to extreme 
cases. In many ways, it is similar to the Senate's power to 
advise and consent with respect to Presidential appointments, 
treaties, and so on.
    But I still worry that the constitutional retooling in 
order to accomplish even that, a benign amendment like the 
Mondale amendment, would have unwanted consequences. I suppose 
here I agree with Hamilton and Madison that the pardon power 
uniquely is best reposed in one person, the head of the 
executive branch. I fear that pardons by committee, which this 
could become, would not be a good thing.
    My greatest worry is that it would strip the President of 
the pardon power during moments of passion, during moments of 
crisis when he or she needed that pardon power the most. 
President Ford's pardon of Richard Nixon, I think, is a great 
example of that. As you remember, at the time President Ford 
granted that pardon in 1974, the public reaction was outrage, 
disapproving, and it didn't die down in a 100-day period 
either. It may have well cost Gerald Ford the election in 1976.
    Twenty-7 years later, however, the Ford decision to pardon 
Nixon to bring finality to the Watergate crisis is viewed by 
many scholars and citizens, including myself, as a good thing, 
something that really did heal the country. Would the Ford 
pardon have survived a Mondale amendment? I can certainly see a 
scenario where it would not have because of the passions of the 
time. I could see a two-thirds vote to overturn that.
    On the plus side, a Mondale type amendment would allow us 
to get at some of these, as I call them in my prepared 
statement, bad pennies. It would turn up a few abuses, but it 
would also create, I think, Senators, a powerful temptation for 
Congress and for the American public to interject themselves in 
the most lonely and difficult of the pardon decisions.
    The wisdom of many pardon decisions, I think, as we are 
going to see, is only judged with a period of time and 
reflection. So allowing a legislation veto even with a high 
two-thirds threshold might rob the President of his or her 
ability to act with swiftness, definitiveness and courage in 
the most difficult of circumstances. And the cost to the 
Nation, it seems, might far exceed the benefit of rooting out 
the occasional bad coin.
    Those are my preliminary thoughts. I want to say that I 
believe that hearings like this are extremely important. I 
agree with your comments, Senator Specter and Senator Sessions, 
that it is extremely important for us in a democratic republic 
to have these things out in public and to put future Presidents 
on notice that it is the best thing for all concerned to follow 
the Department of Justice procedures and to do these things 
according to certain procedures.
    I welcome your questions and I thank you for the privilege 
of testifying, Senator.
    Senator Specter. Thank you very much, Professor Gormley.
    [The prepared statement of Mr. Gormley follows:]

  Statement of Ken Gormley, Professor of Constitutional Law, Duquesne 
                  University, Pittsburgh, Pennsylvania

    Good morning. My name is Ken Gormley. I am a Professor of 
Constitutional Law at Duquesne University in Pittsburgh. I should begin 
by saying, Senator Hatch, that it is a special honor to join you at 
these Committee hearings. I formerly taught at the University of 
Pittsburgh School of Law--your alma mater--where Dean W. Edward Sell 
still brags about you as his best student in over a half century. I 
greatly appreciate the invitation of yourself, my own Senator, Senator 
Arlen Specter, as well as the entire Committee to appear here today. I 
hope that I can offer some thoughts, however brief, that are of some 
assistance. Specifically, I intend to discuss possible Constitutional 
amendments to the existing Presidential pardon power contained in 
Article II, Section 2, clause 1, and attempt to assess each.
    I have a modest degree of expertise in the subject of Presidential 
pardons. I am the author of ``ArchibaldCox: Conscience of a Nation,'' 
the biography of the first Watergate Special Prosecutor. In connection 
with my work on that book, I had the privilege of interviewing 
President Gerald R. Ford, and was struck by the passion with which he 
defended his decision to pardon his predecessor, Richard M. Nixon. In 
1999, I organized a program at Duquesne University entitled ``President 
Ford's Pardon of Richard M. Nixon: A 25-Year Retrospective,'' broadcast 
on C-SPAN television. This program brought together many of the key 
figures in the Ford and Nixon Administrations, who directly 
participated in the events culminating in the pardon of Richard Nixon. 
Like many Americans, I once viewed the decision of President Ford to 
grant that pardon as a bad one, at the time he made it in 1974. Yet 
time and historical perspective led me to reassess that view. With the 
benefit of 25 years' hindsight, I came firmly to the conclusion that 
President Ford's controversial decision was ``the right thing for the 
country'' (as President Ford told me at the Duquesne program), 
regardless of what one felt about Richard Nixon's possible offenses.
    I begin with this introduction only because my general reaction, 
after an admittedly short period of reflection and research to get 
prepared for today's hearing, is that this esteemed Committee (and the 
Senate as a body) should proceed cautiously in this terrain. I do 
believe that some possible amendments to the existing pardon power 
might be more Constitutionally sound, and less disruptive to our 
tripartite system of government, than others. Although I do not intend 
to get into the merits of any of the specific pardons granted by 
President Clinton at the end of his term--because I frankly do not know 
enough about the facts to offer an intelligent assessment of them--I 
hope that I can at least assist the Committee in discussing some of the 
possible amendment concepts under consideration, and how these might 
affect the Framers' broader Constitutional scheme.
    My conclusion is that a proposal like the so-called Mondale 
Amendment that was briefly considered in 1974, allowing a President's 
pardon to be overridden by a two-thirds vote of both the House and 
Senate, would be least offensive to our existing system of government 
and the concomitant notion of separation of powers. However, I still 
find myself leaning towards caution when it comes to any Constitutional 
revision, since it will impact future Presidents for as long as our 
democratic republic exists. Before investing the time and energy 
necessary to guide a Constitutional amendment through Congress, and 
thereafter obtain the requisite ratification of three-fourths of the 
States, I believe that it is essential for this Committee to gauge not 
only the potential benefits, but also the possible costs. Each time we 
tinker with the original work-product of the Framers, we risk producing 
unintended consequences. In this case, I am not convinced that the 
benefits of tinkering--however sensible in one sense--warrant the 
possible disruption of a system that works reasonably well.
    As a starting point, without giving you a law school lecture, I 
thought that a brief history of the Presidential pardon power might 
make sense. This, in turn, will help shape an understanding of the 
impact of several possible Constitutional amendments.

                     I. History of the Pardon Power

    The literature on the pardon power is rather limited. The same is 
true of the historical evidence of what the Framers had in mind when 
they adopted this provision in the Convention of 1787. This much can be 
said as a general sketch. The pardon power in England, which derived 
from the Roman tradition, was extremely broad. As early as 7 
th century A.D. there are records of Kings possessing such a 
power. By 1535, the pardoning power was firmly lodged in the Crown. 
Pursuant to English common law, the King had flexible powers to pardon 
offenses either before or after indictment, conviction or sentencing. 
He could grant full or partial pardons; he could make them conditional 
or unconditional. The great legal commentator William Blackstone wrote 
that the purpose of this sweeping power was to enable the sovereign to 
show mercy in appropriate cases; to instill loyalty in his subjects; 
and to advance the interests of the state. Admittedly, there were 
abuses of the pardon power from the start--some Kings went so far as to 
charge monetary fees to dispense absolution. Yet the practice became 
entrenched, and took root in the American colonies from the time of 
settling. Under the Virginia Charter of 1609, the Charter of New 
England of 1620, as well as most colonial charters of the 17th century, 
the Governor or Proprietor was authorized to pardon individuals for 
criminal acts--although certain crimes like murder or treason were 
often excepted.
    My own state--Pennsylvania--was a fairly typical example. William 
Penn, the Proprietor, was authorized to ``remit, release, pardon, and 
abolish whether before judgment or after all Crimes and Offenses 
whatsoever committed within the said Country against the said Laws,'' 
with an exception being made for ``Treason and willful and malicious 
Murder.'' Only the King had the power to overrule Penn's decision as 
Proprietor.
    During the Constitutional Convention of 1787, the debate on the 
Presidential pardon power was quite limited. Neither the original 
Virginia Plan nor the New Jersey Plan contained a pardon provision. It 
was Alexander Hamilton of New York, along with Charles Pickney and John 
Rutledge of South Carolina, who successfully pressed for inclusion of a 
Presidential pardon power at the Convention. The sparse historical 
clues suggest that these draftsmen believed that the Chief Executive 
should possess a pardon power in order to dispense mercy, in certain 
instances, just as kings and governors had done. As Hamilton would 
later write in Federalist No. 69, on March 14, 1788: ``In most of these 
particulars the power of the President will resemble equally that of 
the King of Great Britain and of the Governor of New York.''
    Roger Sherman of Connecticut attempted to introduce a motion that 
would require the ``consent of the Senate'' to validate Presidential 
pardons. Sherman's motion was swiftly rejected. Members of the 
Convention viewed it as transferring too much power to an already 
powerful Senate. The Convention also rejected a proposed amendment, 
offered by Edmund Randolph of Virginia, that would have excepted 
``cases of treason'' from the pardon power. The Convention did, 
however, agree to insert the words ``except in cases of impeachment"at 
the end of the pardon language, the only real limitation on the 
President's discretion. (This was probably influenced by the historical 
clash in 17 th century England during which the Earl of 
Danby, Thomas Osborne, was impeached by Parliament but pardoned by King 
Charles II, spawning a lengthy constitutional crisis.)
    James Iredell of North Carolina (later a Justice of the U.S. 
Supreme Court), directly addressed the Constitutional Convention's 
concern that the President might abuse the pardon power in order to 
obscure his own guilt in criminal conduct. Iredell responded: ``Nobody 
can contend upon any rational principles, that a power of pardoning 
should not exist somewhere in every government, because it will often 
happen in every county that men are obnoxious to a lawful conviction, 
who yet are entitled, from some favorable circumstances in their case, 
to a merciful interposition in their favor.'' He went on to declare: 
``When a power is acknowledged to be necessary, it is a very dangerous 
thing to prescribe limits to it. . . .'' In Iredell's view, the only 
true restraint upon abuse of the pardon power by a President was the 
risk of ``damnation of his fame to all future ages. . . .''
    During the ratification process, the details of the pardon 
provision were likewise subject to little discussion or debate. James 
Iredell, now a member of the North Carolina ratifying convention, 
argued that the pardon power should naturally be reposed in the branch 
of government ``possessing the highest confidence of the people--the 
executive branch.'' Alexander Hamilton, defending the pardon power in 
Federalist No. 74, concluded that ``one man (the President) appears to 
be a more eligible dispenser of the mercy of the government, than a 
body of men.'' Hamilton went on to articulate, in Federalist 74 (March 
25,1788), an oft-quoted justification for the Presidential pardon 
power:
    ``[T]he principal argument for reposing the power of pardoning in. 
. .the Chief Magistrate is this: in seasons of insurrection and 
rebellion there are often critical moments when a well-timed offer of 
pardon to the insurgents or rebels may restore the tranquility of the 
commonwealth; and which. . .it may never be possible afterwards to 
recall. The dilatory process of convening the legislature, or one of 
its branches, for the purpose of obtaining its sanction to the measure, 
would frequently be the occasion of letting slip the golden 
opportunity.''
    Hamilton further argued that a pardon power, vested in the Chief 
Executive, would allow the President to foster humanity while 
accomplishing sound public policy: ``Humanity and good policy conspire 
to dictate, that the benign prerogative of pardoning should be as 
little as possible fettered or embarrassed. The criminal code of every 
country partakes so much of necessary severity, that without an easy 
access to exceptions in favor of unfortunate guilt, justice would wear 
a countenance too sanguinary or cruel. As the sense of responsibility 
is always strongest in proportion as it is 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.''
    It is safe to say that the pardon power has been used by Presidents 
for a host of purposes, in the 214 years since its inclusion in the 
Constitution. A review of some of the most noteworthy (and 
controversial) pardons in American history reveals a colorful 
assortment of Presidential absolutions. In the large number of pardons 
granted in the nation's history--over 13,000 in the 20 th 
century alone--there are a surprisingly small number that have come 
under attack as illegitimate, at least with the benefit of historical 
hindsight.

               II. Noteworthy Pardons in American History

    From the inception of the new nation, the Presidential pardon power 
was exercised with regularity, often in controversial cases. President 
George Washington issued a pardon, in 1795, to leaders of the Whiskey 
Rebellion in Pennsylvania. President John Adams pardoned rebels 
involved in Fries' Rebellion, and also used the pardon power to end the 
Tariff Insurrection of 1800. President Thomas Jefferson pardoned 
deserters from the Continental Army; he also pardoned a number of 
Jeffersonian Republicans (his political supporters) who had been 
convicted--under the Alien and Sedition Act--of treason for publishing 
anti-Federalist political materials during the previous Federalist 
Administration. President James Madison pardoned deserters, in order to 
entice soldiers to fight the War of 1812. After the war, he pardoned 
Jean Lafitte's pirates, who helped win the Battle of New Orleans. 
President Andrew Jackson pardoned the Barataria pirates. President 
James Buchanan exercised the pardon power to end a serious crisis in 
Utah, excusing Mormon settlers who clashed with federal troops during 
the forced removal of Brigham Young as Governor of the state. 
(President Grover Cleveland later pardoned numerous Mormon settlers, to 
shield them from prosecution for polygamy.) During the Civil War, 
President Abraham Lincoln dispensed pardons generously to Confederate 
sympathizers--in return for loyalty oaths--in an effort to undercut the 
rebellion. After Lincoln's death, President Andrew Johnson granted 
pardons by the thousands, including to leaders of the Confederacy, in 
order to heal a divided nation. (His ``Christmas Proclamation of 
1868,'' which absolved ``all persons guilty of treason and acts of 
hostility,'' generated considerable anger within Congress.) Yet these 
pardons remained viable, despite repeated attempts by Congress to limit 
Johnson's power.
    In more modern times, President Warren G. Harding speeded up the 
commutation of Socialist Party leader Eugene Debs, so that Debs could 
return home for Christmas. President Harry Truman granted amnesty to 
select individuals who had violated the draft during World War II. 
President Richard Nixon issued several controversial pardons, including 
one to Teamsters President Jimmy Hoffa for jury tampering, on condition 
that Hoffa stay out of union management. President Gerald Ford issued 
the historic pardon to Richard M. Nixon. President Jimmy Carter granted 
amnesty pardons in 1977 to those individuals who had avoided the draft 
during the Vietnam War, as a means of healing deep internal wounds from 
that conflict. President Ronald Reagan pardoned New York Yankees owner 
George Steinbrenner for illegally funneling money into Nixon's 1972 
Presidential campaign; he also commuted a foreign spy's life sentence 
to seek the release of American citizens imprisoned abroad. President 
George Bush pardoned oil tycoon Armand Hammer, convicted of making 
unlawful contributions to the Nixon campaign during the Watergate 
period. Bush also triggered a controversy when he absolved six alleged 
participants in the IranContra scandal, including former Secretary of 
Defense Caspar Weinberger, whom he believed had acted out of a sense of 
patriotism. And President Bill Clinton has generated considerable 
controversy with respect to several pardons, particularly (as this 
Committee is well aware) his pardon of financier Marc Rich, a 
commodities trader convicted in the early 1980's of conspiracy, tax 
evasion, and racketeering, who had fled to Switzerland.
    During the course of the 20 th century, Presidents 
collectively exercised their power under Article II, section 2 to 
pardon over 13,000 individuals, and to commute the sentences of 
thousands more. (Only two Presidents, James Garfield--who was 
assassinated after several months in office and William H. Harrison 
never exercised the pardon power at all.) Franklin D. Roosevelt, who 
held office for three terms, pardoned 2,721 individuals. Harry S. 
Truman granted 1911 pardons. Dwight D. Eisenhower pardoned 1110. John 
F. Kennedy pardoned 472. Lyndon B. Johnson issued 959 pardons. Richard 
Nixon, in six years, pardoned 863. President Ford pardoned 381 
individuals. Jimmy Carter pardoned 534. Ronald Reagan granted 393 
pardons. George Bush issued 74. And Bill Clinton dispensed 396 pardons 
during two terms in office.

           III. Supreme Court Interpretation of Pardon Power

    Consistently, the United States Supreme Court has interpreted the 
President's pardon power in extremely broad terms. In United States v. 
Wilson (1833), Chief Justice John Marshall defined the power like this:
    ``As this power has been exercised, from time immemorial, by the 
executive of that nation whose language is our language, and to whose 
judicial institutions ours bear a close resemblance; we adopt their 
principles respecting the operation and effect of a pardon, and look 
into their books for the rules prescribing the manner in which it is to 
be used by the person who would avail himself of it.
    ``A pardon is an act of grace, proceeding from the power entrusted 
with the execution of the laws which exempts the individual, on whom it 
is bestowed, from the punishment the law inflicts for a crime he has 
committed. It is the private, though official act of the executive 
magistrate. . .''
    Nearly a hundred years later, the Supreme Court shifted away from 
viewing a pardon sheerly as an act of grace. Rather, the Court 
suggested that it was a means of empowering the President to accomplish 
swift, decisive good for the country, especially during situations 
involving political upheavals or emergencies. As Justice Oliver Wendell 
Holmes, Jr. wrote in Biddle v. Perovich (1915), the pardon was ``not a 
private act of grace from an individual happening to possess power,'' 
but an act designed to further ``the public welfare.''
    In the interests of furthering that welfare, the Supreme Court has 
consistently backed up the President's pardon power, even when it has 
collided with legislation, however well-intentioned. In two Civil War 
era cases--Ex Parte Garland (1867) and Klein v. United States (1872)--
the Court concluded that the President's pardon power could not be 
restricted by legislation. In Garland, the Court invalidated an act of 
Congress that would have required lawyers admitted to the bar of the 
United States courts to take a loyalty oath, because that law 
indirectly clashed with the President's pardon power (the President had 
already pardoned Garland for his involvement in the Civil War). In 
Klein, the Court enforced a presidential pardon that allowed the 
recipient to recover property, despite an Act of Congress that 
attempted to cause such property to be forfeited. As the Court wrote in 
Garland: ``The power of the President is not subject to legislative 
control. Congress can neither limit the effect of his pardon, nor 
exclude from its exercise any class of offenders. The benign 
prerogative of mercy reposed cannot be fettered by any legislative 
restrictions.''
    This theme has been a constant one. In Ex Parte Grossman (1925), 
Chief Justice Taft wrote that ``whoever is to make (the pardoning 
power) useful must have full discretion to exercise it. Our 
Constitution confers this discretion on the highest officer in the 
nation in confidence that he will not abuse it.'' In the 1974 case of 
Schick v. Reed, involving the commutation by President Eisenhower of a 
military prisoner's death sentence, the Court reiterated the same 
theme, stating that the pardon power ``cannot be modified, abridged, or 
diminished by the Congress.''
    In sum, few Presidential powers have been interpreted so broadly. 
Any modification of the President's sweeping pardon power under Article 
II, Section 2 would necessarily require an amendment to that provision.

                        IV. Possible Amendments

    In considering possible adjustments to the current pardon 
provision, it is first worthwhile to rule out certain approaches that 
would create upheaval within our Constitutional system. Eliminating the 
pardon power entirely, or shifting it to another branch of government 
(the legislature or judiciary), would undermine the Presidency in ways 
that the Framers of the Constitution certainly deemed unacceptable. 
Pursuant to a long standing Anglo-American tradition, the pardon power 
has historically been vested in the President (or King), to achieve 
mercy in special cases, and to resolve crises by uniting the nation at 
times when swift action is necessary. Abolishing this power would 
amount to abolishing a piece of tradition rooted in centuries' worth of 
American history, erasing the compelling arguments of Alexander 
Hamilton in Federalist Nos. 69 and 74, that won the day during the 
ratification process. Moreover, since the pardon power is itself a 
``check'' on the powers of the legislative and judicial branches--when 
it comes to criminal sanctions that may prove to be too stiff or 
inflexible in particular instances--removing this power from the 
executive branch would defeat its central purpose.
    Likewise, a proposed Constitutional amendment giving Congress power 
to enact a code of rules which the President (and/or the Department of 
Justice) would be mandated to follow in dispensing pardons, would upend 
the existing Constitutional framework. On its surface, such a plan 
might have some appeal. It would permit Congress to bind a President to 
standards akin to those Justice Department regulations presently 
governing pardons, and thus prevent the President from bypassing 
Department of Justice procedures, as arguably occurred in the case of 
several of President Clinton's pardons. Yet such a Constitutional 
amendment would in effect obliterate the separation of powers between 
the executive and the legislative branches. The President, pursuant to 
Article II, Section 1, stands as the Chief Executive. The power to 
initiate, oversee, and terminate criminal prosecutions rests with the 
President alone, along with his subordinates in the executive branch, 
including the Attorney General. A Constitutional amendment authorizing 
Congress to establish ground rules for the processing and granting of 
pardons, would (in essence) wrestle a core executive function away from 
the President.
    This would create several potential problems, with respect to the 
existing balance of power. A future Congress bent on thwarting the 
President's pardon powers, for political or other reasons, could shrink 
the parameters of his legitimate pardons (via legislation), making it 
almost impossible for a Chief Executive to exercise that Constitutional 
power. A future Congress bent on achieving the opposite goal, i.e. 
allowing a proliferation of pardons to achieve certain political goals, 
could tailor the legislation to permit--or even mandate--the President 
to grant pardons in cases he found unpalatable or unworthy of clemency. 
This option, therefore, leads to troublesome complications.
    The most attractive alternative, at least on the surface, would be 
one similar to the so-called Mondale Amendment, introduced in Congress 
shortly after President Ford's controversial pardon of Richard M. Nixon 
in 1974. That proposed amendment, offered during the 93 rd 
Congress by Senator Walter Mondale of Minnesota, would have added the 
following sentence to the existing pardon clause: ``No pardon granted 
an individual by the President under section 2 of Article 11 shall be 
effective if Congress by resolution, two-thirds of the members of each 
House concurring therein, disapproves the granting of the pardon within 
180 days of its issuance.''
    Certainly, an amendment drafted in the image of the Mondale 
Amendment would avoid the most serious Constitutional concerns raised 
by other options. First, it would keep the pardon power lodged firmly 
in the executive branch. Second, it would sidestep the problem of the 
legislature meddling in the details of the pardon process; the 
President alone (in conjunction with the Attorney General under his 
command) would establish procedures for considering and granting 
pardons. Third, the most worrisome threat to separation of powers would 
be deflated. Rather than granting Congress a loose, far-reaching veto 
power over Presidential pardons, such an amendment would presumably 
limit Congress's involvement to extreme cases. Only where two-thirds of 
the members of both chambers of Congress agreed that a pardon should 
not have been granted could the President's decision be trumped. Given 
this high hurdle, Congress's exercise of power in this realm would be 
reserved for unusually egregious circumstances.
    There is some surface appeal to such a proposed amendment, which is 
not unlike the Senate's power under Article II, section 2, clause 2 to 
advise and consent with respect to Presidential appointments, treaties, 
etc. Yet my instincts nonetheless warn me against a hasty campaign to 
adopt such an amendment.
    At least two reasons trigger my sense of concern and caution. 
First, I am not convinced that the relatively small number of 
putatively-questionable pardons, in the 214-year history of our 
Constitutional experiment, warrants tinkering with a system that 
generally works. As a student and admirer of the Constitutional genius 
that guided the Framers in devising the most durable charter known to 
human-kind, my instincts warn me--as a general rule--to disfavor 
Constitutional amendments except where absolutely necessary. Unless 
there exists a clear track record of abuse or dysfunction, over a 
period of many years and many Administrations, I would be inclined to 
err on the side of leaving the Constitutional applecart undisturbed.
    Second, and perhaps most importantly, I worry that a Constitutional 
amendment--even one as benign as the Mondale Amendment--might produce 
unintended consequences, defeating the laudable purposes for which the 
pardon power was created in our Anglo-American system of laws. 
Alexander Hamilton was correct, I believe, when he stated that the 
pardon power is best left in the hands of a single official, who heads 
the Executive Branch. (This point was also made by James Madison in 
Federalist No. 74.) Granting pardons by committee would turn into an 
unwieldy, messy political process. Even worse, it might strip the 
President of the pardon power during moments of stress and crisis when 
he or she most needs to exercise that power.
    President Ford's pardon of Richard M. Nixon provides a useful 
example. At the time President Ford issued this controversial pardon on 
September 8, 1974, the nation was weary from Watergate. Many citizens 
were shocked when Ford appeared unexpectedly on television, on a serene 
Sunday morning, and absolved Mr. Nixon of all potential federal crimes 
committed during his second term in office. Large segments of the 
American citizenry were outraged that the former President would escape 
prosecution for his participation in the Watergate coverup, especially 
after digesting the recently-released transcripts of the Watergate 
tapes. The public reaction to Ford's exercise of the pardon power was 
loud, angry and disapproving. It may well have cost Gerald Ford the 
election of 1976.
    Yet twenty-seven years later, Ford's decision to pardon Nixon, to 
bring finality to Watergate, is largely viewed by scholars and public 
figures and citizens alike as an act of courage that proved beneficial 
to the nation. It provided the nation ``A Time to Heal,'' as President 
Ford suggested in the title of his own autobiography. It gave the 
President a swift and decisive way to end the national obsession with 
Watergate, and move on to conducting the business of the nation.
    Would the Ford pardon of Richard M. Nixon have survived a 
Constitutional provision like the Mondale Amendment? The answer, of 
course, is a matter of historical speculation. Yet it is not difficult 
to imagine a scenario in which two-thirds of the Congress would have 
voted to overturn Ford's unpopular and controversial decision. Some 
Representatives and Senators would have undoubtedly voted along strict 
party lines to invalidate the pardon. Others, even if sympathetic to 
the newly-installed President Ford, might have succumbed to public 
pressure and voted to overturn the Presidential action in order to 
``save face'' with their constituents.
    In the end, a provision like the Mondale Amendment would allow the 
public itself to exert considerable influence upon the viability 
Presidential pardons, during times of high emotions and passion. These 
are precisely the times, however, when public influence is most 
dangerous. It cannot be denied that certain ``bad pennies'' will 
inevitably sneak into the mix, if the Presidential pardon power remains 
strong, as it currently exists in the Constitution. Jefferson was 
suspected of favoring his Anti-Federalist supporters with the 
Presidential pardon power. Lincoln was accused of granting a 
disproportionally large number of pardons to friends from Kentucky. 
(``Pardon brokers'' purported to have influence with pardoning 
authorities in Washington, during this period, and extracted lucrative 
fees.) President Bush came under fire for pardoning various Iran-Contra 
defendants; Independent Counsel Lawrence Walsh and others charged that 
Bush was protecting himself from legal difficulties and embarrassment 
that would flow from having to testify at the defendants' trials. 
President Clinton, since leaving office, has been roundly criticized 
for pardoning fugitive financier Marc Rich, presumably in return for 
some direct or indirect quid pro quo.
    The Mondale Amendment would allow Congress to sift through the pile 
of Presidential pardons during each Administration and extricate any 
bad pennies. In one sense, then, it would be productive; it would 
certainly turn up a small number of abuses. It is beyond dispute that 
some pardons have been premised upon political and personal gain.
    My worry, however, is that a Mondale-like amendment would 
simultaneously create an irresistible temptation for Congress and the 
American public to interject themselves into the most controversial and 
lonely pardon decisions that face a President--such as those confronted 
by Gerald R. Ford (during Watergate) or Abraham Lincoln and Andrew 
Johnson (during the Civil War) or James Buchanan (during the clash 
between federal troops and Mormon settlers in Utah) or George 
Washington (during the Whiskey Rebellion). In such cases, 
contemporaneous judgment is far less useful than historical 
perspective. The wisdom of the most controversial pardons in American 
history, it seems, cannot be judged on the spot. Allowing a legislative 
veto, even with a high twothirds threshold, might rob the President of 
his ability to act with swiftness and definitiveness and courage in the 
most difficult circumstances. The cost to the nation, it seems, might 
far exceed the benefit of rooting out the occasional bad coin.
    It must be remembered, moreover, that the Presidential pardon 
power--even as currently constructed in the Constitution--is not an 
unlimited one. There are a number of built-in restraints on the power, 
which (at least to a certain extent) soften the potential damage that 
can occur due to an occasional bad decision. First, the pardon power 
applies only to federal crimes; state crimes (which typically exist 
hand-in-hand with federal offenses) can still be prosecuted. Second, 
the pardon power eliminates only criminal punishment; civil liability--
which can pose a substantial problem for a pardon recipient--remains 
undisturbed. Third, the pardon power does not apply to cases of 
impeachment. Fourth, since pardons do not necessarily occur at the end 
of a President's term (many are granted in mid-term), a President could 
still be impeached and removed from office for certain gross abuses of 
the power.
    Finally, even if this Committee were to recommend to the full 
Senate the adoption of a Constitutional amendment similar to the 
Mondale Amendment, I would strongly recommend at least two 
modifications. First, the proposed 180-day period during which Congress 
is permitted to act seems far to long. One of the crucial features of 
the pardon power, historically, has been to permit the Chief Executive 
to act swiftly, decisively and with finality to bring an end to crises 
that threaten the well-being of the entire nation. A period of 60 days 
or 90 days seems more than adequate to allow Congress to methodically 
examine the President's pardons and determine if there are any of 
questionable merit. Only extreme cases would warrant the exercise of 
the legislative veto power, in any event, under a provision like the 
Mondale Amendment. In moments of crisis and delicate negotiation, the 
value of a well-timed pardon would be rendered hollow, if it hung in 
limbo conditioned upon a long Congressional approval process.
    Second, if the Senate were to amend the existing pardon language of 
Article 11, section 2, it would make good sense to take the opportunity 
to make clear that the President cannot pardon himself or herself. Both 
during the Iran-Contra matter, and more recently during the Monica 
Lewinsky scandal that plagued the Clinton Administration, much 
speculation and scholarly debate centered upon the question whether the 
President could Constitutionally pardon himself. The general consensus 
was that: A) this seemed implicitly inappropriate and impermissible, 
but B) nothing in the Constitution or its history expressly forbade it. 
Although I have not advocated, in my testimony today, that a 
Constitutional amendment of any sort is the best course, if this Senate 
were to choose to move forward with a Mondale-type amendment, or any 
other change in the language of Article II, Section 2, it would make 
good sense to clear up this ambiguity and make explicit that a 
President cannot pardon himself or herself.

                               Conclusion

    The great bulk of Presidential pardons, over the 214-year history 
of the Constitution, have been dispensed with an appropriate level of 
caution, leading to only rare assertions of abuse. It is true that 
controversies inevitably erupt with respect to certain politically-
charged pardons. Yet the passage of time often softens the light in 
which they are viewed.
    Absent a consistent pattern of Presidential misuse, my strong 
instinct is to leave the power undisturbed. Although a Mondale-type 
amendment has some merit, it also has some drawbacks. The most 
difficult, lonely pardon decisions might be compromised by the 
injection of Congressional and public input. Controversial pardon 
decisions might easily be overturned due to high emotions and political 
passions, during moments in American history when such influences are 
the most dangerous. In the end, although the existing system is not 
perfect, it seems best to leave pardon decisions to one man or woman 
occupying the White House, with a strong presumption that they will be 
dispensed legitimately.
    This is not to say that the recent controversy, involving the 
pardon of Marc Rich by President Clinton, has not served a valuable 
purpose. It remains a stark reminder to future Presidents that it is in 
the best interest of all concerned to scrupulously adhere to Justice 
Department procedures, and avoid the sort of controversy that has 
triggered today's hearings. So long as a President acts in conjunction 
with a careful Justice Department, and a vigilant Pardon Attorney, the 
number of mistakes and ``bad pennies'' will be kept to a minimum.
    James Madison argued in Federalist No. 74 that the pardon power 
should be lodged in a single individual--the Chief Executive--and that 
in the long run this would be a safe repository. ``The reflection that 
the fate of a fellow creature depended on his sole fiat,'' Madison 
wrote, ``would naturally inspire scrupulousness and caution; the dread 
of being accused of weakness or connivance, would beget equal 
circumspection, though of a different kind.''
    As James Iredell (later Justice Iredell) stated during the 
Constitutional ratification process, the President who abused this 
sacred power would face the most serious risk of all--``damnation of 
his fame to all future ages. . . .''
    Thank you for the privilege of testifying before this Committee 
today, on a matter of such great Constitutional importance.

    Senator Specter. We now turn to Professor Christopher 
Schroeder, a doctor of law from the University of California, a 
master of divinity from Yale, a bachelor's degree from 
Princeton in 1968. Professor Schroeder is the Director of 
Programs and Public Law, and Co-Chair of the Center for the 
Study of Congress at Duke University.
    Thank you for joining us, Professor Schroeder, and we look 
forward to your testimony.

  STATEMENT OF CHRISTOPHER H. SCHROEDER, PROFESSOR OF LAW AND 
 PUBLIC POLICY STUDIES, DUKE UNIVERSITY, DURHAM, NORTH CAROLINA

    Mr. Schroeder. Thank you, Mr. Chairman and members of the 
committee, and thank you for the opportunity to be here today.
    I have submitted written testimony which largely whistles 
the same tune as my two preceding colleagues. This may be a 
rare moment in which you have three academics here who largely 
agree with one another. Rather than summarize that testimony, 
let me just make three preliminary remarks about the nature of 
the pardon power and why I concur that at this time amending 
the Constitution to change it in some way would be unwise.
    If you look at the power in the text, three aspects of it 
jump out at you immediately. It is very broad; it applies to 
every Federal offense except impeachment. There are no 
standards and it is unreviewable. You look at a power like that 
and one of your immediate reactions is, ouch, this is a power 
that can be abused. That is right; it can be.
    Then you go back and you look at the Philadelphia 
convention records and the ratifying convention records and the 
debates surrounding the ratification of the Constitution and 
you see, lo and behold, the founding generation was perfectly 
aware of all three of these characteristics. They well 
understood that an unreviewable power was subject to abuse. 
They well understood that they were making it unreviewable. 
They debated a suggestion to involve the Senate in the process 
at the Philadelphia convention and decided not to adopt it.
    In the end, what persuaded them to loose such a rogue and 
vagrant power and house in the office of the President? Well, 
fundamentally, two things: one, a felt incapacity to identify 
in advance all the circumstances under which a pardon of some 
kind or an act of clemency might be warranted either in the 
national interest or in the interests of justice or in the 
interests of mercy, and, second, a sense that on some 
occasions, again impossible to identify in advance, some 
element of dispatch might be necessary.
    The examples they used are probably not applicable any 
longer. The idea that a pardon given to a participant in a 
treason conspiracy before he or she had been tried might enable 
us to honor the other accomplices and suppress the treasonous 
plot in an expeditious manner may not be applicable today. But 
that is still a value that would be lost with the 
recommendation to subject a pardon to a 180-day review, and you 
can think of circumstances even today where that might matter.
    It would have mattered, I think, in the Preston King case 
where, in the interests of humanitarian concerns, that pardon 
was granted when it was in significant part in order to allow 
Mr. King to come to the country in a timely manner to attend 
his brother's funeral.
    You can imagine circumstances that we hope will never arise 
in which we do have some difficulties with some foreign power 
and we have the potential of getting information from a spy, 
say, and we haven't tried him or her yet. Yet, it is felt in 
the interests of the Nation that we might be able to extract 
that information in return for a conditional pardon. Well, how 
often will those circumstances occur? Who knows? It really is 
impossible to say.
    I have got two background principles with which I approach 
any question of amending the Constitution, though, that also 
for me tilt the scale further in the direction of inaction at 
this time.
    One, Mr. Chairman, you have mentioned, that we ought to be 
very careful before we amend the Constitution. It has only been 
done, as others have noted, 17 times since the first Congress. 
The stability of that document is one of the virtues of it and 
one of our National assets, and we just ought to be very 
careful before we do it.
    The corollary to that to me is we ought to make sure before 
we amend the Constitution that we have exhausted non-
constitutional means to at least round off some of the rough 
edges that we might see in a situation. It might not be a 
perfect substitute for an amendment, but there are some 
legislative proposals, such as some version of S. 2402 that was 
introduced and voted on in committee in the last Congress, that 
would add some more transparency to the process.
    I think there may be some other ideas, some of which I 
mention in my testimony, that the Congress could 
constitutionally take that would fall short of amending the 
document. Any kind or review provision is inevitably going to 
be most successful in grabbing and preventing unpopular 
pardons, perhaps with the two-thirds provision only high 
unpopular pardons.
    But the difficulty is, as Professor Gormley has noted, in 
our history there have been good unpopular pardons and there 
have been bad unpopular pardons. It is just that we can't tell 
them at the time. We are consumed by a passionate moment, as in 
the case of the Nixon pardon. I think, in retrospect, that one 
has borne up fairly well.
    I was also myself personally -I will express a personal 
opinion--opposed to President Bush's pardon of Defense 
Secretary Weinberger and the other five, and I have come to 
look a lot more kindly on that pardon as time has gone on and 
as I have come to understand in more detail the way the 
independent counsel statute works, among other things. So that 
is the cost you pay.
    The question, then, for you is whether the cost is worth it 
for the benefit you would gain in preventing a future Marc 
Rich. I think that the prospects of this kind of event, a last-
hour pardon that has a lot of questionable features to it, is 
one that is relatively, if not highly unlikely to occur in the 
future. I say that not wanting myself to express any definitive 
opinion about the Rich pardon because I don't yet know all the 
facts either. There is certainly a lot of interest in learning 
more of those facts.
    Those are my considerations and why in my written remarks I 
recommend against a constitutional amendment. I look forward to 
answering any questions you may have.
    Senator Specter. Thank you very much, Professor Schroeder.
    [The prepared statement of Mr. Schroeder follows:]

  Statement of Christopher H. Schroeder, Professor of Law and Public 
                    Policy Studies, Duke University

    Mr. Chairman, Senator Leahy and members of the Committee. My name 
is Christopher H. Schroeder. I am a professor of law and public policy 
studies at Duke University. During the Clinton Administration, I worked 
for some time in the Office of Legal Counsel at the Department of 
Justice, including a period as the acting head of that office. As you 
know, one of the important functions of that office is analyzing and 
preserving the legitimate scope of the President's constitutional 
powers, including those of chief executive officer of the United 
States. Since returning to teaching, issues of executive power and the 
relationship between the Congress and the President have been among my 
areas of research and scholarship.
    I thank you for the invitation to discuss with you proposals to 
amend the President's power to grant reprieves and pardons. I will not 
be commenting upon the justifications for any of President Clinton's 
late-term acts of clemency, but will confine my remarks to inquiring 
into whether or not amending the President's pardon power is warranted 
at this time. In particular, I will discuss my reservations concerning 
proposals for a Constitutional amendment subjecting Presidential 
pardons to Congressional disapproval by a two-thirds vote of both 
chambers taken with 180 days of the pardon. While reasonable minds may 
disagree, I respectfully submit that going forward with such a proposal 
is both unjustified at this time and unwise from the perspective of 
preserving the strengths of the current Constitutional system.
          The President's Broad Power of Reprieves and Pardons
    The Constitution vests in the President ``Power to grant Reprieves 
and Pardons for Offenses against the United States, except in Cases of 
Impeachment.'' Art. II, Sec. 2.
    As Presidents have exercised this power throughout the nation's 
history, three features of that power have often elicited comment. 
First, the power is very broad in scope. Second, the power is vested 
exclusively in the President, and cannot be ``modified, abridged or 
diminished by the Congress.'' Schick v. Reed, 419 U.S. 256, 266 (1974). 
Third, Presidents have used the pardon power for a wide variety of 
purposes.
    The Supreme Court has repeatedly recognized the broad scope of the 
pardon power. For example, in Ex Parte Garland, the Supreme Court 
summarized the reach of a presidential pardon as follows:
    The power thus conferred is unlimited, with the exception [in cases 
of impeachment]. It extends to every offence known to law, and may be 
exercised at any time after its commission . . .[W]hen the pardon is 
full, it releases the punishment and blots out of existence the guilt, 
so that in the eye of the law the offender is as innocent as if he had 
never committed the offence. If granted before conviction, it prevents 
. . . the penalties and disabilities consequent upon conviction from 
attaching; if granted after conviction, it removes the penalties and 
disabilities, and restores him to all his civil rights; it makes him, 
as it were, a new man, and gives him a new credit and capacity. Ex 
Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866). In addition to the 
full power of pardon, the power to grant ``reprieves and pardons'' 
encompasses all forms of clemency, including pardon, amnesty, 
commutation, remission of fines, and reprieve. See Daniel Kobil, ``The 
Quality of Mercy Strained: Wresting the Pardoning Power from the 
King,'' 69 Tex. L. Rev. 569, 575-78 (1991) (collecting authorities).
    Second, the President's power is also not subject to restriction or 
limitation by the Congress. To quote again from Ex Parte Garland: This 
power of the President is not subject to legislative control. Congress 
can neither limit the effect of his pardon, nor exclude from its 
exercise any class of offenders. The benign prerogative of mercy 
reposed in him cannot be fettered by any legislative restrictions. Ex 
Parte Garland, 77 U.S. at 380.
    Third, experience has also demonstrated that Presidents have 
exercised the power for apparent purposes that have ranged from playing 
important strategic roles in matters of great public concern and 
interest, to giving individualized effect to a changed sense of what is 
just or merciful in a particular case. Some Presidential pardons that 
have played strategic roles in national affairs include President 
Jefferson's pardon of persons who had been charged and convicted under 
the Alien and Sedition Act for publishing criticisms of Federalist 
government policies; the pardons of President Lincoln and Johnson of 
participants on the side of the Confederacy after the Civil War, and 
President Bush's pardon of participants in the Iran-Contra affair. The 
most famous pardon of this sort in American history may be President 
Ford's pardon of former President Nixon, a decision sufficiently 
unpopular at the time that it contributed to President Ford's defeat in 
the next election.
    ``The benign prerogative of mercy'' has been exercised in very 
particularized circumstances as well, where the specific facts of an 
individual case have moved the President to grant clemency. Among the 
recent pardons by President Clinton is that of Aldoph Schwimmer, who 
had been convicted and served his criminal sentence for violations of 
the Neutrality Act when he ferried aircraft to Israel during its war 
for independence, as well as those of several persons serving sentences 
under federal laws carrying mandatory minimums, sentences that seem 
quite disproportional when compared to others. President Clinton's 
pardon of Preston King, who had protested racially discriminatory 
treatment by his draft board, eventually fleeing the country, also 
falls within this category. Of course, strategic pardons also can have, 
and most of them have had, elements of individualized mercy or justice 
in them as well.
    These are just two significant types, not meant to be exhaustive. 
At the end of the day, anyone who has examined the history of 
Presidential pardons can only conclude that the motives and rationales 
behind them have been quite diverse, and as an entire group they resist 
all efforts to identify a set of necessary or sufficient conditions for 
a pardon to be granted. The elastic and standardless nature of the 
pardon power helps account for the comment of President Carter's pardon 
attorney, John Stanish, that ``[t]here never has really been much rhyme 
or reason to clemencies in the past.'' Krajick, ``The Quality of 
Mercy,'' 5 Corrections Magazine 46, 53 (June, 1979) (quoting John 
Stanish).
             The Original Understanding of the Pardon Power
    None of these three elements of the pardon power were inadvertent. 
In each case, the records of the Constitution Convention and the 
Ratifying Conventions reflect consideration of them.
    In the case of the broad scope of the pardon power, an amendment 
offered by Luther Martin at the Philadelphia Convention would have made 
the power exercisable only after conviction, and another by Edmund 
Randolph proposed to except cases of treason from among the pardonable 
offenses. 1 The Records of the Federal Convention of 1787 626-27 (M. 
Farrand ed. 1911). After discussion of the need for great flexibility 
in the scope of the power, Martin withdrew his motion. Randolph's 
failed by a vote of 8 to 1.
    The Framers concluded that pardons might be useful in advance of 
conviction to further national interests, such as in situations where 
granting pardon to a captured spy might produce significant military 
intelligence. Randolph's motion was explicitly offered because of his 
fear that the power might be abused in the case of treason. Such 
pardons, he argued, could be given to agents of the very President 
doing the pardoning, in which case the power to pardon might enable the 
President to offer it in exchange for assistance in covering up the 
President's own guilt. Yet the fear of Presidential abuse did not 
prevail against the concern that the President have maximum flexibility 
in exercising the power.
    Likewise, placing congressional restrictions on the President's 
power was explicitly proposed during the Constitutional Convention, in 
the form of a proposal by Roger Sherman to give the President power to 
reprieve until the next session of the Senate, and the power to pardon 
only with the consent of the Senate. 1 The Records of the Federal 
Convention of 1787 419 (M. Farrand ed. 1911). Like Randolph's proposal, 
this one failed 8 to 1.
    The conviction that flexibility was a paramount value in regards to 
the pardon power seems to have proceeded from the sense that it was 
impossible to anticipate in advance all of the circumstances in which 
it might be useful to fulfill the power's two grand purposes: to 
provide the President a valuable policy instrument in the pursuit of 
national objectives, and to make available the possibility of mercy in 
individual cases. As James Iredell expressed it in debate during the 
North Carolina ratifying convention:
    ``Nobody can contend upon any rational principles, that a power of 
pardoning should not exist somewhere in every government, because it 
will often happen in every country that men are obnoxious to a lawful 
conviction, who yet are entitled, from some favorable circumstances in 
their case, to a merciful interposition in their favor . . .[Yet] it is 
impossible for any general law to foresee and provide for all possible 
cases that may arise . . .Where a power is acknowledged to be 
necessary, it is a very dangerous thing to prescribe limits to it . . 
.For this reason, such a power ought to exist somewhere; and where 
could it be more properly vested, than in a man who had received such 
strong proofs of his possessing the highest confidence of the people?'' 
Address of James Iredell, North Carolina Ratifying Convention (July 28, 
1788), reprinted in 4 The Founders Constitution 17 (P. Kurland & R. 
Lerner ed. 1987). Alexander Hamilton expressed much the same sentiments 
in Federalist 74, when he wrote: ``Humanity and good policy conspire to 
dictate, that the benign prerogative of pardoning should be as little 
as possible fettered or embarrassed. The criminal code of every country 
partakes of so much necessary severity, that without an easy access to 
exceptions in favor of unfortunate guilt, justice would wear a 
countenance too sanguinary and cruel. As the sense of responsibility is 
always strongest in proportion as it is 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.'' ``Federalist 74,'' reprinted 
in The Federalist 500-01 (J. Cooke ed. 1961).
    Thus we can see in the debates surrounding the ratification an 
awareness of the salient characteristics of the pardon power. Those who 
wrote and ratified the Constitution made the power broad and 
unreviewable so that it could be utilized in circumstances where the 
public interest or the interest of individual justice or mercy called 
for its use, in the judgment of a single individual, the President of 
the United States. As they were endorsing this power, they were quite 
cognizant that its unreviewability was a source of potential abuse. 
Still, in settling on the present text of the pardon clause, the 
considered judgment of the Founding Era was that the clause's positive 
virtues and usefulness represented the greater value when compared to 
its costs.

           Standards To Be Met For Amending the Pardon Power

    In light of this history, any amendment to qualify the President's 
pardon power ought at the very least to bear the burden of persuasion 
by pointing out considerations earlier overlooked or underappreciated 
which now justify a conclusion opposite to that reached by the Founding 
generation. The burden here, I would further suggest, is greater than 
simply convincing us that faced with the task of drafting a 
Constitution today, we would come to a different conclusion as to 
whether or not it ought to contain a power identical to in one now 
found in Article II, Section Two, Clause 1. The fact that we are 
speaking of amending the Constitution, as well as the more particular 
fact that we are speaking of amending a provision in the Constitution 
that has stood unchanged for over two centuries, raise additional 
considerations that must themselves weigh in the balance.
    Before even reaching an assessment of the pardon power as an 
isolated provision, we ought to recognize that the stability of the 
Constitution is a separate national asset that itself needs to be 
valued. Throughout our history, reverence for the Constitution itself 
has come to be one of the shared values that unifies an extraordinarily 
diverse citizenry. As the world's oldest written Constitution, it has 
acquired that status in significant part because it was been so 
remarkably stable, amended only seventeen times after the First 
Congress produced the Bill of Rights, which completed the 
Constitutional design promised during the ratification process. Its 
provisions have come to stand for more than ordinary legislative 
enactments ever can, simply in virtue of the fact that they are 
Constitutional provisions.
    Years ago, the noted American legal philosopher Lon Fuller captured 
an aspect of this sentiment when he warned that: We should resist the 
temptation to clutter up [the constitution] with amendments relating to 
substantive matters. [In that way we avoid] . . . the obvious unwisdom 
of trying to solve tomorrow's problems today. But [we also escape the] 
more insidious danger [of] the weakening effect [such amendments] have 
on the moral force of the Constitution itself `` Lon Fuller, ``American 
Legal Philosophy at Mid-Century,'' 6 J. Legal Educ. 457, 465 (1954), as 
cited in Hearings on Proposed Flag Desecration Amendment Before the 
Subcomm. on Constitution of the Senate Comm. on the Judiciary, 104th 
Cong., 1 st Sess. (June 6, 1995) (statement of Gene R. 
Nichol) (emphasis added). More recently, in direct response to current 
proposals to change the pardon power, Chicago Law Professor David 
Currie has been quoted as saying, ``I'm not one for tampering with the 
Constitution. Something has to be very seriously wrong before you mess 
with it, lest it become something like an ordinary law.'' David Currie, 
quoted in Peter Nicholas, ``Judging the Cons of Power to Pardon,'' 
Philadelphia Inquirer Washington Bureau (February 8, 2001).
    Respect for the stature that our Constitution has as a practical 
matter achieved in the civic life of our country ought not, of course, 
prevent us from revising features of it that have come convincingly to 
be called into significant question. Still, concern that frequent 
efforts to amend may well have the effect of reducing it to something 
like an ordinary law ought to cause us to pause before doing so, in 
order to assure ourselves by convincing evidence that the document 
truly does contain a systemic flaw. Even then, prudence further 
dictates that we have thoroughly explored non-amendment options that 
can address all or some of the deficiencies we believe that we have 
found. Non-amendment devices need not even be perfect substitutes for 
constitutional amendment, but if they can ameliorate the perceived 
deficiencies at acceptable costs, they may reduce the magnitude of the 
constitutional deficit to the point where the wiser course is to settle 
for these alternatives rather than to pursue the amendment option. 
Close examination of the calls to amend the pardon power indicates that 
proposals to amend it fail on both these fronts.
    The immediate stimulus for proposals to amend the pardon power--the 
perceived deficiency in its current formulation--are perceptions of 
abuse by former President Clinton. The suggestion is that he has used 
the pardon power for self-serving reasons in situations where the 
legitimate purposes of the power would not have supported clemency. I 
am not in a position to evaluate such charges with respect to any of 
the recent pardons or commutations of former President Clinton. Even if 
these perceptions prove to be accurate, however, it would be highly 
doubtful that the abuses of a single President justify revising the 
pardon power. Before doing that, one needs to take into account the 
entire history of the use of the power, and reasonable projections 
about its future use, with attention to what an amendment will cost as 
well as what it will achieve.
    No one can deny that it would be impossible to justify every act of 
clemency by American Presidents as solely advancing either some 
national policy interest or the interests of individual justice or 
mercy. This should come as no surprise to us. It would not have 
surprised the Founders, who understood full well that ``enlightened 
statesmen will not always be at the helm.'' Federalist 10 (Madison) in 
The Federalist 60 (J. Cooke ed. 1961). Unfettered power is subject to 
abuse, and always will be. Fully aware of this, the drafters and 
ratifiers of the Constitution adopted the pardon power as we now see 
it. The relevant question is whether limiting the power would count as 
a substantial improvement.
    Subjecting presidential pardons to subsequent Congressional 
approval, it must be conceded, will predictably enable the Congress to 
intercept some patent abuses, and the availability of such review will 
discourage Presidents from exercising the power in abusive ways in 
additional cases as well. It will inevitably do more than this, 
however.
    For one thing, it will enable the Congress to intercept highly 
unpopular acts of clemency, regardless of whether or not they abuse the 
power. Both our better selves, as well as the interests of the country, 
ought to counsel that we do not wish to impair the ability of 
Presidents to undertake unpopular acts of clemency that he or she 
considers well justified. Some of the most important pardons in our 
nation's history have been highly unpopular at the time. Leading such a 
list must be President Ford's pardon of former President Nixon. That 
pardon might well have not survived Congressional review. Democrats 
would have decried the pardon as inexcusably preventing a trial that 
would have brought all the facts of President Nixon's involvement in 
the Watergate affair to full public light. Indeed, many Democrats did 
just that, although because President Ford's action was unreviewable, 
they were helpless to do anything other than protest after the fact. 
Had the matter been put to a Congressional vote, however, it is quite 
conceivable that a sufficient number of Republicans would have found it 
in their own best political interests to reject the pardon. They may 
have feared that if they did not so vote that they would be held 
accountable in the next election, as President Ford himself was, losing 
to President Carter in 1976. President Bush's pardon of Casper 
Weinberger and five others indicted for Iran-Contra related offenses 
was also unpopular in many circles and may well have been thought 
difficult to justify by members of Congress, were they in a position of 
responsibility for it.
    With the passage of time, each of these pardons has come to seem 
more meritorious to me than when they were first announced. Although I 
objected to President Ford's action at the time, I now believe that he 
did the country a great service by sparing us the spectacle of a former 
President standing in the dock for trial. The Watergate debacle, coming 
on the heels of the Vietnam War, contributed enough to the public 
cynicism about the national government as it is. The trial of Richard 
Nixon could only have exacerbated matters. The Iran-Contra pardons, 
which I also opposed at the time, have also acquired greater legitimacy 
in my eyes as time has passed.
    The entire affair arose out of statutes that can reasonably be 
characterized as the criminalization of a foreign policy dispute. While 
the Congress has the constitutional authority to exercise its power of 
the purse as it did, this feature of the case, combined with the 
extremely strong incentives that the now-defunct Independent Counsel 
statute created to seek indictments, did produce circumstances under 
which President Bush might reasonably have concluded that Defense 
Secretary Weinberger and the others had been treated with undue 
harshness. I suspect that I am not alone in these reassessments.
    The class of unpopular pardons is not confined to those related to 
national political disputes. Clemency can be used as a means for a 
President to instigate or participate in a debate over the justice of 
laws under which people have been incarcerated. A number of President 
Clinton's recent acts of clemency assisted individuals serving 
mandatory minimum sentences under circumstances that highlight the 
unfairness such minimums can on occasion produce. Clemency provides an 
especially powerful statement of a President's opinion of the 
appropriateness of such sanctions. One can perhaps imagine President 
Bush at some time in the future pardoning pro-life activists sentenced 
under federal statutes that protect access to family planning clinics, 
in order to serve a similar purpose.
    Acts of clemency such as these will of course produce political 
opposition. Many people favor ever tougher sentences in the war against 
drugs, and the clash between pro-life and prochoice convictions is a 
staple of our politics. I am not aiming to declare either side of 
either debate the morally superior view, but rather to point out that 
congressional review of pardons will reduce unpopular acts of clemency, 
either in situations in which they are unpopular enough to be overruled 
during the review, or because Presidents choose not to incur the 
political risks. (It is one thing to pay a political price for an 
effective action. That same price can well be too steep if the action 
risks ultimately being ineffective because it is overturned by others.) 
In advance, one simply cannot determine which unpopular clemencies will 
come to be seen as statesmanlike acts of courage. What one can 
determine is that subsequent congressional review will lessen the 
number of unpopular clemencies granted by Presidents, costing the 
country some acts of courage as the ineluctable price to be paid for 
intercepting some abuses.
    Congressional review will also impair the ability of the President 
to act with dispatch. The fact that the pardon will not be final for 
180 days may prevent clemency from being effective when we would want 
it to be. It may be that national security interests of some urgency 
require the cooperation of an informant, but the non-final nature of an 
offered pardon causes the informant to remain silent. It may be that 
the humanitarian purposes of the pardon are substantially reduced in 
value by the non-final nature of a pardon. Preston King, for instance, 
might have been unwilling to risk return to the United States for his 
brother's funeral if his pardon had remained non-final for 180 days.
    In sum, Congressional review will skew acts of clemency toward the 
politically popular, away from the politically unpopular, thus reducing 
the willingness of Presidents to take actions whose merit emerges only 
with the passage of time. It also reduces the usefulness and value of 
the power in situations in which urgency seems required. These are not 
costs that we ought to incur based on our assessment of the recent 
pardons alone.
    Beyond these considerations, Congressional review of pardons also 
has the adverse consequence of vesting in the Congress a power that 
will be in considerable tension with the Constitutional design of 
separated powers. As one means of protecting individual liberty, the 
Constitution establishes a system of criminal justice in which the 
Congress enacts the laws, the executive applies the laws, and the 
judiciary review the factual accuracy of the executive's judgments. As 
a general proposition, this set up evinces a belief that legislative 
bodies are ill equipped to apply and review the application of laws to 
individual cases. In fact, the prohibitions on both ex post facto laws 
and bills of attainder, Art. I, Sec. 9, cl. 3, are textually explicit 
testaments to the belief that Congress should not be able to assess 
individual culpability and punishment, and that these are tasks which, 
in the interests of individual liberty, are best assigned to the 
executive and the judiciary. Congressional review of presidential 
pardons would involve the Congress in just such tasks. After the facts 
of an individual's actions are known, in reviewing a pardon decision, 
Congress would be placing itself in a position to determine the 
appropriateness of punishment on an individual basis. While a duly 
ratified constitutional amendment would make such review 
constitutional, this would not eliminate the evident tension between 
the prohibitions on ex post facto law and bills of attainder that such 
an amendment would create.

                         Non-Amendment Options

    Whatever enthusiasm remains for placing Constitutional limitations 
on the President's pardon power ought to be dispelled by the prudential 
principle that amending the Constitution should be a remedy of last 
resort, adverted to only after other ameliorative options have been 
exhausted. Here, Congress has by no means exhausted the non-Amendment 
options available to it.
    While Congress lacks the legislative power to place direct 
limitations on the President's power to pardon, there are steps it can 
take that will go some distance in reducing the likelihood of future 
abuses.

 First, insofar as people have objected to the absence of input 
        from victims or their families, prosecutor or trial court 
        judges, Congress can enact legislation making notification of 
        such persons a condition subsequent to the receipt by the 
        Department of Justice of request for a pardon. While I make no 
        judgment here as to the details of S. 2042 from the last 
        Congress, that legislation illustrates such an approach. It may 
        also be that regulations issued by the Department of Justice 
        under existing statutory authority could acccomplish 
        substantially the same objectives.
 Second, Congress could also rely upon its power of the purse 
        to prohibit any Department of Justice involvement in the 
        investigation, processing or preparation of documents with 
        respect to any pardon for which such notification had not been 
        given. The Constitution prevents Congress from restricting 
        access by the President to the Attorney General and others with 
        whom he or she may wish to consult, but it can prohibit the 
        expenditure of public funds for activities ancillary to the 
        exercise of the pardon power itself.
 Third, as a hortatory measure, Congress could go on record as 
        advising the President not to proceed with any clemency as to 
        which he or she had not received Department of Justice advice 
        on a set of enumerated criteria regarding the worthiness of the 
        clemency. In a similar vein, Congress could urge the President 
        to issue a presidential directive stating his or her intentions 
        to comply with such procedures, and stating that any pardon 
        requests received by the Executive Office of the President 
        should be referred to the Department of Justice for such 
        advice, with an appropriate proviso for exigent circumstances. 
        This would place a burden of public justification on the 
        President for pardons that proceeded through non-standard 
        channels.

    Of course, these measures would fall short of preventing the 
President from exercising the pardon power autonomously. Scholars such 
as Yale Law Professor Charles L. Black have argued that through the 
power of the purse the Congress has the Constitutional authority to 
reduce the President's staff to one--but that one could be assisting 
the President in writing grants of pardon. See Charles L. Black, ``The 
Working Balance of the American Political Departments,'' 1 Hastings 
Const. L. O. 13, 15-16 (1974). Nor would they prevent a determined 
President from executing a grant of clemency to which the Congress, as 
well as the overwhelming majority of the American public, would object. 
Still, I believe such measures would go a long way to ameliorate the 
difficulties that have prompted these hearings. While I do not share 
the view that any revisions in statutory law are warranted at this 
time, should you disagree with me, I urge that measures short of 
amending the Constitution are the proper steps to take.
    Thank you for inviting me to share my views with you. I look 
forward to answering any questions you may have. I would be happy to 
work with committee staff to explore any of the non-Amendment options I 
have suggested above.

    Senator Specter. Mr. Quinn, you were not here when we 
started the panel and since you may be, in part, a fact 
witness, I would like you to stand and take the oath.
    Mr. Quinn. Certainly.
    Senator Specter. Do you, Jack Quinn, solemnly swear that 
the testimony you will give before this Committee on the 
Judiciary of the U.S. Senate will be the truth, the whole truth 
and nothing but the truth, so help you God?
    Mr. Quinn. I do.
    Senator Specter. Mr. Quinn, we are taking a look at the 
pardons of Mr. Rich and Mr. Green as illustrative for looking 
forward as to what action might be taken in the future. You 
have already testified as to the facts before the House 
committee, and we are interested in a focus on what we might 
look to in the future, but the 7 minutes are yours, so we are 
interested in hearing whatever you have to say.

    STATEMENT OF JACK QUINN, ATTORNEY, QUINN AND GILLESPIE, 
                        WASHINGTON, D.C.

    Mr. Quinn. I appreciate it, Senator.
    Senator Specter, distinguished members of the committee, I 
appreciate this opportunity to provide information about the 
pardon of Marc Rich. I am well aware that all of you have 
already expressed your disapproval of this pardon. I don't 
expect to be able to change your mind about that today, but 
before the hearing is adjourned I hope that all of you will 
know that I presented a case on the legal merits, I pursued my 
client's interests vigorously and ethically, and I believe this 
pardon was based on the legal and diplomatic considerations 
presented to the President.
    My principal mission upon being retained in this matter in 
the spring of 1999 was to help bring resolution to the 
indictment against Mr. Rich at the Justice Department. During 
an intensive period of review that lasted for several months, I 
learned that the Rich indictment grew out of a patchwork of 
energy regulations enacted in the Carter administration and 
repealed on President Reagan's first day in office.
    Those regulations attempted to limit the price of oil, but 
as a result of their many exceptions they created powerful 
incentives for major U.S. oil companies to try to avoid these 
price caps. One way to do so involved linking price-controlled 
domestic oil transactions with non-price-controlled foreign 
transactions in dealings with international oil resellers.
    U.S. oil producers structured transactions that provided 
additional profits on foreign transactions to compensate them 
for their inability to maximize profits on regulated domestic 
transactions. My client facilitated this and profited from 
these linkages. The complex resulting transactions are central 
to Mr. Rich's indictment.
    For reasons I can explain, it is critical that you keep in 
mind the linked nature of these transactions because it is the 
failure to see this linkage that led to a mistaken view of the 
tax charges that are at the heart of Mr. Rich's indictment.
    The indictment against Mr. Rich was unique for two very 
important reasons. First, prosecutors used the Racketeer 
Influenced and Corrupt Organizations Act, RICO, when they 
indicted Mr. Rich. It was one of the first times they had done 
so in a case not involving organized crime. Ignoring what I 
believe was clear congressional intent, the New York 
prosecutors used the RICO sledgehammer to attack Mr. Rich for 
what amounted to what he thought was no more than a regulatory 
dispute.
    In 1989, as you know, the Department of Justice changed its 
guidelines for the use of the RICO statute, essentially 
prohibiting its use in tax cases like this one. It did so on 
the heels of widespread criticism of the use of RICO in cases 
like this. I have cited several examples of this criticism in 
my testimony, but just as an example, on the pages of the Wall 
Street Journal which repeatedly recognized that the U.S. 
attorney's office in New York was misusing RICO, and it cited 
the Marc Rich case as a prominent example of that abuse, in 
1989 Yale-trained lawyer and weekly columnist Gordon Crovitz 
wrote, and I quote, ``It is worth taking a second look at Mr. 
Giuliani's first big RICO case. This was the much celebrated 
1984 case against Marc Rich, the wealthy oil trader. A close 
reading of the allegations shows that these effectively reduced 
to tax charges. The core of the case is that Mr. Rich wrongly 
attributed domestic income to a foreign subsidiary. Again, this 
sounds like a standard civil tax case, not RICO.''
    Unfortunately, by the time the Department of Justice had 
finally reigned in its tactics, the Southern District 
prosecutors had used RICO and its asset forfeiture provisions 
to coerce Mr. Rich's companies into a $200 million guilty plea 
just to survive. And Mr. Rich had been labeled a racketeer and 
fugitive for not returning from his headquarters in Switzerland 
to be subjected to what he believed, rightly or wrongly, would 
be an unfair and prejudicial racketeering trial. Indeed, once 
his companies had been forced to plead guilty by the use of the 
RICO statute, Mr. Rich believed, again rightly or wrongly, that 
he stood virtually defenseless as an individual to similar 
charges.
    The second unique aspect of this case was that although the 
prosecutors were still trying to subject Mr. Rich to criminal 
penalties, the major U.S. oil companies that had structured the 
very transactions at issue in the indictment were themselves 
pursued only civilly.
    In fact, when the United States Department of Energy 
independently examined transactions involving one of Mr. Rich's 
major trading partners, ARCO, it concluded that ARCO had 
improperly failed to account for the linked domestic and 
foreign transactions, and thereby had violated the excess 
pricing/profits regulations. Yet, DOE pursued ARCO only on a 
civil basis for violations of the regulations. The Southern 
District of New York never indicted any of the U.S. oil 
companies that structured these transactions.
    I want to emphasize this point. The same Department of 
Energy recognized that the Marc Rich companies had correctly 
taken into account the linked nature of the transactions on 
their books. Despite this, the prosecutors attacked the same 
transactions in their indictment against Mr. Rich. They took 
the position directly contrary to the DOE regulators that the 
domestic and foreign transactions should not be considered 
linked for U.S. tax and energy purposes. So DOE used the 
administrative process to collect hundreds of millions of 
dollars in civil penalties from ARCO, while the Southern 
District criminalized the conduct of Mr. Rich based on an 
exactly contradictory analysis of the same facts.
    This was not just my conclusion. Two of the most preeminent 
tax authorities in the Nation, Professors Bernard Wolfman of 
Harvard and Martin Ginsburg of Georgetown, analyzed the 
transactions at issue and concluded that the Marc Rich 
subsidiary correctly reported its income from those 
transactions.
    So in October 1999, I turned to a man with whom I had 
worked in the past and for whom I have immense respect, then 
Deputy Attorney General Eric Holder. I first met with Mr. 
Holder about the Rich case in late October 1999. I met with him 
to provide him with an overview of the flaws in the outstanding 
indictment against Mr. Rich. This conversation and other 
contacts with Mr. Holder are reflected in the documents I have 
provided to the committee.
    According to my notes of a November 8, 1999, telephone 
conversation with Mr. Holder, several weeks after our first 
meeting, he told me that he and other senior DOJ officials 
thought that the refusal of the Southern District to meet with 
Mr. Rich's attorneys was ill-considered and, in fact, in his 
word, ``ridiculous.''
    At Mr. Holder's suggestion, I wrote to Mary Jo White, the 
U.S. Attorney for the Southern District of New York, on 
December 1, 1999, asking that her office reexamine the charges 
against Mr. Rich. I was denied even a meeting. This left us at 
an intractable impasse, and so eventually I sought a pardon.
    I know you say he was a fugitive, how could you do that? As 
a general rule, I don't disagree that pardons should not be 
granted to alleged fugitives, but there have been exceptions 
for unique circumstances. Mr. Rich is certainly not the first 
person who has been pardoned despite his alleged fugitivity.
    As you heard earlier, Presidents Wilson, Truman and Carter 
pardoned all of the draft evaders of their eras, despite their 
fugitivity. Mr. Holder himself advocated a pardon granted to a 
fugitive who had received prejudicial treatment because of his 
race.
    I argued my case, though certainly dissimilar from those, 
as another reasonable exception because I thought our legal 
arguments were compelling and because the Government's now 
admitted misuse of RICO had created the very situation, Mr. 
Rich's absence, that the Government cited in refusing to 
discuss the merits of the case.
    As Senator DeWine earlier recited, I personally notified 
Mr. Holder in his office on November 21, 2000, that I would be 
sending a pardon application directly to the White House. I 
told him then that I hoped to encourage the White House to seek 
his views. He said that I should do so, and I did later 
encourage the White House to seek his views.
    At no time did I attempt to circumvent the Justice 
Department or prevent its views from being taken into account. 
In fact, I hoped the consultation with Mr. Holder by the White 
House would help me make my case for Mr. Rich because I 
believed Mr. Holder was familiar with the charges and with our 
arguments as to the flaws in the indictment. And more 
importantly, at a minimum I knew that he realized we were at an 
impasse because the U.S. Attorney's office would not discuss 
the matter or consider our arguments.
    On December 11, I delivered a two-inch-thick pardon 
application, right here, to the White House, more than 5 weeks 
before the pardon was granted on January 20. While the 
application was under consideration, I wrote to Mr. Holder on 
January 10 and asked him to weigh in at the White House with 
his views. I sent that letter to him hoping for his support, 
having been informed that his views would be considered 
important.
    I had that letter sent by messenger to the Department of 
Justice while I was out of town, though I now understand there 
were problems with its arrival at Justice and that it was 
routed to and received by the Pardon Attorney on January 18. 
The point here, though, is that I wanted the Department of 
Justice and Mr. Holder involved because I understood their 
views would be considered important.
    Still later, as you know, I called Mr. Holder on the 
evening of January 19 and I told him that Mr. Rich's pardon was 
receiving serious consideration at the White House, and that I 
understood he would, in fact, be contacted before a decision 
was made.
    It is now my understanding from Mr. Holder himself, from 
then White House Counsel Beth Nolan, and from former President 
Clinton that Mr. Holder was indeed consulted and that he 
expressed a view. I am further told by Ms. Nolan that the 
position he expressed was important to the ultimate decision to 
grant the pardon.
    This was not the first pardon granted upon application 
directly to the White House rather than through the Pardon 
Attorney, and it most certainly did not exclude the Department 
of Justice. In filing the petition, I included the views of the 
prosecutors in the form of the responses I and other counsel 
had received from the Southern District for a meeting, and most 
particularly in the form of the original indictment of Mr. Rich 
itself. Again, I encouraged the White House Counsel's office 
on, I believe, more than one occasion to seek the views of Mr. 
Holder and the Department.
    The pardon petition was filed directly with the White House 
because I knew from personal experience as a former White House 
Counsel that that is not an uncommon practice, and I knew that 
this application did not fit within the four corners of the 
regulations you have discussed earlier governing how the Pardon 
Attorney handles pardon applications.
    As the Washington Post has reported, previous 
administrations in their closing days have considered pardons 
directly at the White House that have not gone through the 
customary Justice Department screening process. In fact, the 
Los Angeles Times reported last week that 46 other pardon 
petitions were submitted directly to the White House in a 
similar fashion this very year.
    I see the light is on, Senator. Do you want me to refrain 
from the last section?
    Senator Specter. No. You may finish your statement, Mr. 
Quinn.
    Mr. Quinn. Thank you, Senator.
    Lastly, let me address the involvement of Denise Rich and 
Beth Dozoretz. Yes, both were involved. Their involvement was 
emphatically not, in my view, determinative or even central to 
my efforts. I based my efforts on the legal case I made, as 
well as on the support of the Government of Israel, not on the 
false presumption that any personal or political relationship 
with President Clinton would result in a favorable outcome.
    Denise Rich is the ex-wife of my client and she wanted 
President Clinton to grant her ex-husband and the father of her 
children this pardon. I encouraged her and her daughters to 
write letters to President Clinton because, as in any pardon 
application, it was appropriate that the President hear from 
family members.
    I know that she urged the President to consider this case 
carefully on two or more occasions, but I want to emphasize I 
never suggested that she talk to the President about anything 
extraneous to the pardon itself. Indeed, I did not know at the 
time about the reported contributions or pledges that she has 
made to the Clinton library, nor did I know at the time about 
the extent of her fundraising activity for the Democratic 
Party, nor did I know that she may have given personal gifts to 
the former President.
    As for the involvement of Beth Dozoretz, Beth has been a 
good friend of mine for several years. She is also a close 
friend of Denise Rich and she is a good friend of President 
Clinton. I knew that she speaks with the former President with 
some frequency, and so I was sure she would know of my efforts 
and no doubt inquire about the status of our application.
    That was not unwelcome to me. I believed she might provide 
me with a sense of our progress or lack of progress. As a 
lawyer, I wanted information from as many sources as I could 
get about where my petition stood at the White House so that, 
if necessary, I could refocus my efforts and my arguments to 
achieve the desired result for my client.
    So I spoke to Ms. Dozoretz over the Thanksgiving weekend 
and told her that I would be filing a pardon petition on behalf 
of Marc Rich. I encouraged her to help me be sure that the 
President himself was aware of the fact that the application 
had been filed with the White House Counsel's office. She did 
just that and reported back to me at some point, in essence, 
that President Clinton had said I should make my case to Bruce 
Lindsey and other counsel in the White House Counsel's office.
    Weeks later, Ms. Dozoretz talked to the President again. 
What I understand her to have reported then is that the 
President was impressed with the legal arguments I had made, 
but was doing due diligence with lawyers in the White House so 
that he understood all of the arguments for and against the 
pardon.
    Again, I would like to emphasize this point. The notion 
that the President was going to be convinced to grant this 
pardon because of support for it from Beth Dozoretz or Denise 
Rich rather than because of the case we made on the law and the 
important support of world leaders like Prime Minister Ehud 
Barak of Israel is, in my view, just untrue.
    I want to add that, as with Ms. Rich, I never asked Ms. 
Dozoretz to talk to the President about this matter in a 
fundraising capacity. On the contrary, from my very first 
conversation, I emphasized to Ms. Dozoretz that this case could 
and must be made on the merits. She did not have to be 
convinced of that.
    As far as I am concerned, the most conclusive evidence that 
the President granted this pardon on the merits was the 
telephone conversation I had with him on the night of Friday, 
January 19. In that conversation, I could tell that President 
Clinton had obviously read and studied the pardon petition. He 
grasped the essence of my argument about this case being one 
that should have been handled civilly, not criminally, and he 
discussed with me whether the passage of time would permit 
statute of limitations defenses in such a civil proceeding. I 
told him that I would happily give him a letter waiving those 
defenses, and he insisted that I provided one to him within an 
hour.
    These comments, I believe, reflect the state of mind of a 
President who was searching to make a decision based on 
fairness and equity. You may disagree with him and with me. You 
may believe he made a terrible mistake, but I tell you today 
that nothing, absolutely nothing, in my conversations with him 
remotely suggested to me that he was thinking about or 
motivated by his friendships, his politics, or his library. 
Everything I saw in my dealings with the President suggested to 
me that President Clinton based his decision on his judgment of 
the merits and, I believe, on the strong support for the pardon 
from Prime Minister Barak.
    Thank you, Senator.
    [The prepared statement of Mr. Quinn follows:]
    [Additional material is being retained in the Committee 
files.]

     Statement of Jack Quinn, Esq., Attorney, Quinn and Gillespie, 
                            Washington, D.C.

    Chairman Specter. Senator Leahy, distinguished Members of the 
Committee, thank you for this opportunity to provide information about 
the pardon of Mare Rich.
    I am well aware that most if not all of you already have expressed 
your disapproval of this pardon. Nonetheless, I welcome the opportunity 
to sit before you and answer your questions about the case I made and 
the process I followed in making it.
    I am here today as a lawyer who believes in the merits of the case 
I made. I do not expect today to turn back the tidal wave of opposition 
to the Rich pardon, but before today's hearing is adjourned. I hope 
that all of you will know that I acted as a lawyer who pursued my 
client's interests vigorously and ethically and that this pardon was 
based on the case I made.
    I joined the Marc Rich legal team in the spring of 1999 while I was 
an attorney at Arnold & Porter. The Rich defense team over the years 
included attorneys of unusual skill and unquestionable integrity, from 
law firms of stellar reputation, including Len Garment, who served as 
President Nixon's White House Counsel; Larry Urgenson, who held a 
senior position in the Reagan Justice Department; Lewis ``Scooter'' 
Libby, who now serves as Vice President Cheney's Chief of Staff, and 
other distinguished attorneys (App. A).
    My principal mission, upon being retained, was to help bring 
resolution to the outstanding indictment against Mr. Rich at the 
Justice Department.
    During an intensive period of review that lasted for several 
months, I learned that the indictment grew out of a patchwork of energy 
regulations enacted in the Carter Administration that were later 
repealed on President Reagan's first day in office. Those regulations 
attempted to limit the price of oil but, as in any complicated 
regulatory regime, there were many exceptions.
    The Carter regulations caused price discrepancies that, in turn, 
created a powerful incentive for major U.S. oil companies to try to 
avoid the regulatory regime. One way to do so involved ``liking'' price 
controlled domestic oil transactions with non-price controlled foreign 
transactions in dealings with international oil resellers. 
Specifically, U.S. oil producers structured transactions that provided 
additional profits on foreign transactions to compensate them for their 
inability to maximize profits on regulated domestic transaction. This 
resulted in complex linked transactions between the major oil companies 
and resellers around the world. These transactions are central to Mr. 
Rich's indictment in which he, a colleague, and two associated 
companies were charged with a variety of crimes. And, for reasons I 
will explain, it is critical that you keep in mind the linked nature of 
these transactions, because the failure to see the linkage is what 
leads to the mistaken view of the tax and energy consequences of the 
transactions that the indictment represents.
    The indictment that had stood against Mr. Rich for almost twenty 
years was unique for two very important reasons:

 First and foremost, prosecutors used the Racketeer Influenced 
        and Corrupt Organizations Act (RICO) when they indicted Mr. 
        Rich--one of the first times they had done so in a case not 
        involving organized crime. In 1983, prosecutors used the RICO 
        sledgehammer--a weapon originally designed to combat mob basses 
        like John Gotti--to attach Mr. Rich for what his lawyers 
        believed amounted to no more than a regulatory dispute about 
        price controls and taxes.
In 1989, the Justice Department changed their guidelines for the use of 
        RICO statutes--essentially prohibiting its use in tax cases 
        like this one. As you will no doubt recall there had been 
        widespread condemnation of RICO abuse by New York prosecutors. 
        Writing in his New York Times column in 1989, William Safire 
        referred to the then-unrestricted use of RICO as a ``legal 
        monstrosity'' adding that ``politically ambitious prosecutors 
        in New York, Chicago and elsewhere'' had ``been making 
        themselves famous by misapplying RICO to targets who have 
        nothing to do with organized crime'' using ``nuclear 
        artillery'' when only ``elephant guns would do.''
In the same vein, the Wall Street Journal has long recognized that the 
        US Attorney's office in New York misused RICO and that the Marc 
        Rich case was a prominent example of that abuse. In 1989, Yale-
        trained layer and weekly columnist Gordon Crovitz wrote: ``It 
        is worth taking a second look at Mr. Giuliani's first big RICO 
        case. This was the much-celebrated 1984 case against Marc Rich, 
        the wealthy oil trade. A close reading of the allegations shows 
        that these also effectively reduce to tax charges. The core of 
        the case is that Mr. Rich wrongly attributed domestic income to 
        a foreign subsidiary. Again, this sounds like a standard civil 
        tax case, not RICO.''
Months later, the same paper's editorial board said: ``[The Department 
        of Justice] should launch a complete review of all US Attorney 
        RICO cases--from Mr. Giuliani's first RICO-expanding case 
        against Marc Rich in 1984 through current allegations against 
        Chicago pit traders and Michael Milken.''
In fact, just days ago two Wall Street Journal reporters recognized 
        that: ``The indictment against Mr. Rich that was invalidated by 
        Bill Clinton's pardon was based in part on aggressive 
        prosecution tactics later reined in by the Supreme Court and 
        the Justice Department.''
Unfortunately, by the time the Department of Justice had finally reined 
        in their tactics, the Southern District prosecutors has misused 
        RICO and its asset forfeiture provisions to coerce Mr. Rich's 
        companies into a $200 million guilty plea just to survive, and 
        Mr. Rich had been labeled a racketeer and fugitive for not 
        returning from his headquarters in Switzerland to be subjected 
        to what he believed would be an unfair and prejudicial 
        racketeering trial. Indeed, once his companies had been forced 
        to plead guilty by the misuse of the RICO statute, Mr. Rich 
        believed that he stood virtually defenseless as an individual 
        to similar criminal charges.
 The misuse of RICO was not the only unique aspect of this 
        case. The second unique factor was that although prosecutors 
        were still trying to subject Mr. Rich to criminal penalties, 
        the major US oil companies that had structured the very 
        transactions at issue in the indictment had themselves been 
        pursued only civilly. In fact when the United States Department 
        of Energy (DOE) independently examined transactions involving 
        one of Mr. Rich's major trading partners, ARCO, it concluded 
        that ARCO had improperly failed to accountfor the liked 
        transactions and thereby had violated the excess pricing/
        profits regulations; yet, DOE pursued ARCO only on a Civil 
        basis for violations of the regulations. The Southern District 
        of New York never indicted any of the U.S. oil companies that 
        structured these types of transactions.
I want to emphasize: the same Department of Energy recognized that the 
        Marc Rich companies had correctly taken into account the liked 
        nature of the transactions on their books. But, despite DOE's 
        recognition that Mr. Rich's companies had properly linked the 
        transactions for accounting purposes, while ARCO had not, the 
        prosecutors attacked these same transactions in their 
        indictment against Mr. Rich. They took the position, directly 
        contrary to the DOE regulators, that the domestic and foreign 
        transactions should not be considered linked for U.S. tax and 
        energy purposes. This inconsistent treatment of DOE and the 
        Southern District goes to the heart of the U.S. government's 
        case against Mr. Rich. DOE used the administrative process to 
        collect hundreds of millions of dollars in civil penalties from 
        ARCO, while the Southern District criminalized the conduct of 
        Mr. Rich based on a exactly contradictory analysis of the same 
        facts.
This was not just my conclusion and that of the reputable attorneys I 
        joined on Rich's defense team. Two of the most preeminent tax 
        authorities in the nation, Professors Bernard Wolfman of 
        Harvard Law School and Martin Ginsburg of Georgetown University 
        Law Center, had analyzed the transactions at issue and 
        concluded that the Marc Rich subsidiary ``correctly reported 
        its income from those transactions and that a court, if called 
        upon to decide the issue, would agree.'' Contrary to statements 
        that have been made about the Ginsburg/Wolfman analysis, both 
        lawyers were fully aware of the prosecutors' evidence against 
        Mr. Rich, including the allegedly ``sham'' transactions and the 
        record-keeping from the ``pots.''

    Put simply, the indictment against Mr. Rich was flawed--not just in 
my view, but also in the views later expressed by two departments of 
the United States Government. The case was built on a perception of the 
transactions later directly contradicted by the Department of Energy, 
and it was inappropriately ratcheted up into a RICO case in a manner 
the Department of Justice later acknowledged was inappropriate. The 
U.S. Government itself has undermined the Rich indictment, not just me 
or other lawyers for Mr. Rich.
    Knowing all of this, I found it difficult to believe that Mr. 
Rich's lawyers had been unsuccessful for more than a decade in trying 
to convince the Southern District of New York to re-examine the charges 
against him. So, in October `1999, I turned to a man with whom I had 
worked in the past and for whom I have immense respect--then Deputy 
Attorney General Eric Holder.
    I first met with Mr. Holder about the Rich case in late October 
1999. The purpose of the meeting was to provide Mr. Holder with an 
overview of the flaws in the outstanding indictment against Mr. Rich. 
This conversation and other contacts with Mr. Holder are reflected in 
the documents I have provided to the Committee (App B). According to my 
notes of a November 8, 1999 telephone conversation with Mr. Holder 
several weeks after our meeting, he told me that he and some senior DOJ 
officials thought that the refusal of the Southern District to meet 
with Mr. Rich's attorneys was will considered and in fact 
``ridiculous.'' Subsequently, he told me that some officials at DOJ 
came to believe that on this matter, ``the equities were on our side,'' 
at least with respect too our request for a meeting.
    At Mr. Holder's suggestion, I wrote to Mary Jo White, the US 
Attorney for the Southern District of New York, on December 1, 1999, 
asking that her office re-examine the charges against Mr. Rich so that 
we might bring the matter to some resolution. But like the long list of 
distinguished lawyers before me, I, too, was denied even a meeting.
    I have searched in vain for a written Justice Department policy 
that directs U.S. Attorneys never to discuss case merits with attorneys 
for alleged fugitives or other absent persons. No such policy exists. 
Indeed, there are many instances in which Justice Department 
prosecutors have engaged in discussions about case merits with indicted 
defendants residing abroad.
    Regardless of this absence of a firm government policy, even main 
Justice was unwilling to talk to us about the merits of the case, 
because Mr. Holder believed he must defer to the Southern District and 
not overrule his subordinates. This left us at an intractable impasse.
    Now, as a general rule, I agree that pardons should not be granted 
to alleged fugitives but there must be exceptions for unique 
circumstances. Mr. Rich is not the first person who has been pardoned 
despite he alleged fugitivity. Presidents Wilson and Carter pardoned 
all of the draft evaders of their eras. Mr. Holder himself advocated a 
pardon granted to a fugitive who had received prejudicial treatment 
because of this race. I viewed my case, though dissimilar, as another 
reasonable exception because I thought our legal arguments were 
compelling and because the government's now admitted misuse of RICO had 
created the very situation--my client's absence--that the government 
cited in refusing to discuss the merits of the case.
    Accordingly, we decided in October 2000 to seek a presidential 
pardon. I believed that the President, as the chief law enforcement 
officer for the nation, essentially serves as our country's top 
prosecutor. I believed a pardon petition would provide the president 
with the opportunity--if we could convince him of the merits--to reduce 
this case to its proper proportions: a civil regulatory dispute.
    I personally notified Mr. Holder in his office on November 21, 
2000, that I would be sending a pardon application directly to the 
White House. I told him then that I hoped to encourage the White House 
to seek his views. He said I should do so. At no time did I attempt to 
circumvent the Justice Department or prevent its views from being taken 
into account. In fact, I hoped that consultation with Mr. Holder by the 
White House would help me make my case for Mr. Rich, because I believed 
Mr. Holder was familiar with the charges and with our arguments as to 
their flaws. Most importantly, I knew that he realized we were at an 
impasse because the U.S. Attorney's Office would not discuss the matter 
or consider our arguments.
    On December 11, 2000, I delivered a two-inch thick pardon 
application to the White House--more than five weeks before the pardon 
was granted on January 20, 2001. While the application was under 
consideration, I wrote Mr. Holder on January 10, 2001 and asked him to 
weight in at the White House with his views. I sent that letter to him 
hoping for his support, having been informed that this views would be 
important. I have that letter sent by messenger tot he DOJ, through I 
now understand there were problems with its arrival and that it was 
routed to and received by the pardon attorney on January 18.
    Still later, I called Mr. Holder the night of January 19, 2001, and 
told him that Mr. Rich's pardon was receiving serious consideration at 
the White House, and that I understood he would be contacted before a 
decision would be made at the White Hour. It is now my understanding 
from Mr. Holder, from then-White House Counsel Beth Nolan and from 
former President Clinton, that Mr. Holder was indeed consulted and that 
he expressed a view. I was told that his view was important to 
President Clinton's ultimate decision.
    I want to emphasize that the process I followed in filing the 
pardon petition was one of transparency at both the Department of 
Justice and the White House. It was not the first pardon granted this 
way and it most certainly involved the Justice Department. In filing 
the pardon petition, I included the views of the prosecutors--in the 
form of the responses I and other counsel had received from the 
Southern District for a meeting and, most particularly, in the form of 
the original indictment of Mr. Rich.
    Furthermore the process this pardon followed gave the president the 
opportunity to weight his decision carefully. For over five weeks the 
White House had time to consider the views of the White House attorneys 
the Justice Department and anyone else with whom it chose to discuss 
the matter to make a judgment on the merits.
    The pardon petition was field directly with the White House because 
I knew from personal experience as a former White House Counsel that it 
was not an uncommon practice. As the Washington Post has reported, 
``previous Administrations in their closing days'' have considered 
pardons directly at the White House that have not going ``through the 
customary Justice Department screening process.'' In fact, the Los 
Angeles Times reported last week that 46 other pardon petitions were 
submitted directly to the White House in a similar fashion.
    Lastly, let me address the involvement of Denise Rich and Beth 
Dozoretz. Yes, both were involved. But I never believed their views 
would be the dispositive consideration for the President. I based my 
efforts on the legal case, as well as the support of the Government of 
Israel, not on the false presumption that any relationship with 
President Clinton would result in a favorable outcome.
    Denise Rich is the ex-wife of my client, and she wanted President 
Clinton to grant her ex-husband and the father of her children this 
pardon. I encourage her and her daughters to write letters to President 
Clinton. As in any pardon application, it was appropriate that the 
President hear from family members. I also encouraged Ms. Rich to 
follow up when she had the opportunity to see President Clinton at a 
White House holiday party--simply by making sure he had seen her 
letter. I know that she urged the President to consider this case 
carefully on that and perhaps another occasion. but I never suggested 
that she talk to the president about anything extraneous to the pardon 
itself. Indeed, I did not know at the time that she had made 
contributions in the past to the Clinton Library, nor did I know at the 
time the extent of her past fund raising for the Democratic Party.
    As for the involvement of Beth Dozoretz, Beth has been a good 
friend of mine for several years. She is also a close friend of Denise 
Rich, and she is a good friend of President Clinton. I knew that she 
talked to the President with some frequency.
    I expected that Ms. Dozoretz would inquire about the status of our 
application. And I believed she might provide me with a sense of our 
progress or lack there of. As a lawyer, I wanted information from as 
many sources as I could get about where my petition stood in the White 
House, so I could refocus my efforts and my arguments to achieve the 
desired result for my client.
    I talked to Ms. Dozoretz over the Thanksgiving weekend and told her 
I would be filing a pardon petition on behalf of Marc Rich, the ex-
husband of her close friend, Denise Rich. I encouraged her to help me 
be sure that the President himself was aware that we had filed the 
petition. She did just that and later reported back to me that 
President Clinton had said I should make my case to Bruce Lindsey and 
others in the White House Counsel's office.
    On another occasion, Ms. Dozoretz talked to the President again. I 
wanted to hear from Ms. Dozoretz any information she might glean from 
the President as to where my petition stood with him. What I understand 
her to have reported is that the President was impressed with my 
arguments but was doing due diligence with lawyers in the White House 
so that he understood all the arguments--for and against the pardon.
    Let me be clear on this point: the notion that the President was 
going to be convinced to grant this pardon because of support for it 
from Beth Dozoretz or Denise Rich, rather than because of the case we 
made and the support of leaders like Ehud Barak, the Prime Minister of 
Israel, is, in my view, untrue. Yes, I was eager to hear any reports 
about what the President was thinking. Yes, I was eager to hear any 
reports about what the President was thinking. Yes, Ms. Dozoretz had 
been a political supporter of the President. But she was no longer the 
Finance Director for the DNC. She had left that job in October 1999. At 
this time, she was a fried of the President. And let me be clear about 
this as well: I never asked Ms. Dozoretz to talk to the President about 
this in a fund raising capacity; on the contrary, I emphasized to Ms. 
Dozoretz that this case could and must be made on the merits. She did 
not have to be convinced of that.
    As fare as I am concerned, the most conclusive evidence that the 
President granted this pardon on the merits was the twenty-minute 
telephone conversation I had with him on the night of Friday, January 
19 th. In that conversation, I could tell that President 
Clinton had obviously read and studies the pardon petition. He grasped 
the essence of my argument about this case being a case that should 
have been handled civilly, not criminally, and discussed whether the 
passage of time would permit statute of limitation defenses. I told him 
that I would waive those defenses. President Clinton then requested a 
letter to that effect within an hour.
    These comments reflect the state of mind of a President who was 
searching for a decision based on fairness and equity and his 
understanding of a regulatory system long ago repealed by the United 
States. you may disagree with him and me. You my believe he made a bid 
mistake. But I tell you that nothing--nothing--in my conversations with 
him remotely suggested to me that he was thinking about his 
friendships, his politics, or his Library.
    In this case as in others, when the press dissects a policy 
decision made by any elected official in Washington, it more times than 
not may find that people were involved or were nearby who at one time 
or another have raised money for political campaigns. That's why I 
don't disagree with Senator John McCain, who said about this matter: 
``The President may have had the purest of motives, but the appearance 
is bad.'' The appearance is bad, as it often is in Washington when 
money has been raised by those who are close to elected officials. But 
I believe that President Clinton based his decision on his judgment of 
the merits, and I see no evidence to the contrary.
    As we sit here today and discuss the pardon process and any changes 
that might be made to improve on it, it is useful to remember that the 
Constitution grants the pardon authority only to the President. The 
Justice Department has a Pardon Attorney, who reports to the Deputy 
Attorney General, and one of the major functions of the Deputy Attorney 
General is to serve as the departmental liaison with the White House 
staff and the Executive Office of the President, including specifically 
with respect to pardons. I informed the Deputy Attorney General of may 
petition. I encouraged the White House Counsel to seek his views. I did 
this over a period of two months, having briefed him about the case for 
more than a year before that.
    The only man to serve both as president and Chief Justice of the 
Supreme Court, William Howard Taft, wrote that the reason the U.S. 
Constitution vests and absolute pardon power in the President is that 
it is ``essential'' that some authority ``other than the courts'' have 
the power to ameliorate or avoid the outcome of particular cases. The 
pardon power has never been limited to being granted only after a 
person has stood trail. As a 1995 Justice Department memorandum 
attests: ``Throughout this nation's history, Presidents have asserted 
the power to issue pardons prior to conviction.'' Effects of a 
Presidential Pardon, 1995 WL 861618 (June 19, 1995). The Iran Contra 
pardons by President Bush are just one recent example.
    In short, as then-Chief Justice Taft wrote for the Supreme Court in 
1925: ``Executive clemency exists to afford relief from undue harshness 
or evident mistakes in the operation or enforcement of the criminal 
law. The administration of justice by the courts is not necessarily 
always wise or certainly considerate of circumstances which may 
properly mitigate guilt.''[Ex parte Grossman, 267 U.S. 87, 120-21 
(1925)]
    President Clinton properly gave serious consideration to Mr. Rich's 
pardon application. He demanded that Mr. Rich's lawyers waiver all 
procedural defenses related to the transactions in question so that Mr. 
Rich would be po0tentially subject to civil penalties, such as those 
faced by others who were involved in similar transactions. In short, I 
believe our nation's top prosecutor handled this case in a way that it 
should have been handled years ago.
    In conclusion, Mr. Chairman, while you may disagree with President 
Clinton's decision, I believe the facts establish that I represented my 
client's interest fairly, vigorously and ethically. And I carried out 
this representation keeping both the Department of Justice and the 
White House informed.
    Thank you for this opportunity to testify.

    Senator Specter. Mr. Quinn, we are looking to the future, 
and the merits look very thin to me, but the appearance of 
impropriety is overwhelming. What could be done when you have 
someone in your position, former White House Counsel, very 
close to the President?
    You have a conversation with him on January 19, the day 
before he is to leave office, which was very rare time, 
considering what he had to do. To call that special access 
would be a vast understatement. Then you consult with Ms. Beth 
Dozoretz for, as you say, the purpose of finding out what had 
happened. But it is an obvious inference that there is an 
interest in having her weigh in as an official of the 
Democratic National Committee.
    Then the Pardon Attorney is not consulted. The pardon falls 
outside the parameters of the Department of Justice regulations 
which the President ignores and has a constitutional right to 
ignore. On an inquiry from the Pardon Attorney a few hours 
before the President is to leave office, about 11 hours before 
he is to leave office, the Pardon Attorney is told that Mr. 
Rich and Mr. Green are living abroad. That creates quite a 
murmur from people who were listening to that.
    Now, looking beyond Marc Rich, what can be done to see to 
it that the very powerful who have the President's ear, like 
Jack Quinn and Beth Dozoretz, are counterbalanced at least by 
having somebody in the White House know something more than 
Marc Rich is living abroad, so that you have the opportunity 
for a just decision, to say nothing about the opportunity for 
the appearance of propriety at the highest level of our 
Government?
    Mr. Quinn. There was an awful lot embedded in that question 
and I would like to try to deal with--
    Senator Specter. Well, not nearly as much as in your 
testimony, Mr. Quinn.
    Mr. Quinn.--to deal with as much of it as I can. As I have 
said, Senator, I do believe the pardon was granted on the 
merits. I don't disagree with you that one of the unfortunate 
aspects of this is that this and other decisions were not 
gotten around to until very, very late, to say the least.
    Senator Specter. Mr. Quinn, I understand that you believe 
it was granted on the merits. You are the attorney for the 
petitioner. You have also said you think it was the right 
decision. Whether it was granted on the merits is in the mind 
of President Clinton.
    When you say it was the right decision, you are about the 
only person who thinks so. It is hard to find a Senator from 
the other side of the aisle--I don't think it is hard, pardon 
me--it is not possible to find a Senator from the Democratic 
side of the aisle, and headlines are that the Democrats are 
deserting the President over it. Then you have the appearance 
question. So what I would like you to direct your attention to 
in the few minutes we have is what can we do for the future.
    Mr. Quinn. Well, I do have a thought about that, Senator. 
In retrospect, I suppose if I had to make a recommendation for 
you as to how this should be handled in the future, I think 
that the current and future Presidents should adopt by 
executive order some process that would be sufficiently 
transparent and ensure the input of as many people as possible 
and appropriate that their decisions on matters like this would 
not be subject to criticism because of the appearances that you 
discussed.
    Senator Specter. If the President adopts an executive 
order, is he bound to follow it? Executive orders are fine for 
the whole Government. The President is the executive. He can 
impose an order that people have to follow, but does the 
President have to follow an executive order or can he 
technically rescind an executive order and do as he pleases? In 
one act of violating the executive order, both may be implied.
    Mr. Quinn. Yes, you are quite right. A President could 
theoretically at least repeal the executive order that governed 
this process and then choose to ignore the process. But the 
reason I suggest that as the appropriate vehicle for doing it 
is that I think there are serious constitutional problems with 
the notion of doing it legislatively through statute.
    Senator Specter. What is wrong with former Senator 
Mondale's idea, Mr. Quinn?
    Mr. Quinn. As a former White House Counsel, I spent an 
awful lot of time defending the prerogatives and the powers of 
the presidency and the office of the presidency. I would worry 
that this process would become imbued with politics and that 
the cure--
    Senator Specter. And the current process is not imbued with 
politics?
    Mr. Quinn. Well, I think in general it is not, and I--
    Senator Specter. How about here?
    Mr. Quinn. Sorry?
    Senator Specter. How about this case? In general, it is 
not. How about this case?
    Mr. Quinn. I don't disagree with you that there have been 
appearance problems here that require people like myself to 
offer an explanation as to--
    Senator Specter. My red light just went on, but you may 
finish your answer, Mr. Quinn.
    Mr. Quinn.--as to the case we made. But it is certainly not 
my impression that the pardon process is inherently or even 
occasionally a political process.
    Senator Specter. Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Quinn, you are obviously a very smart man, a very good 
lawyer.
    Mr. Quinn. Thank you, Senator.
    Senator Feinstein. I listened to your opening statement and 
you made a couple of points. First, about you communications 
with Justice. I looked back to your Exhibit B and counted at 
least eight different occasions where you had made contact with 
Justice. So that is one point.
    The second point was when you went over the merits of the 
case. Let me read what I think happened, and you correct me as 
I go along, interrupt me where this is wrong.
    At the time, Federal law limited the price a seller of 
crude oil could charge, and this amount varied depending on how 
the oil was classified. The oil classifications vaned according 
to the history or the level of production of the well from 
which the oil came.
    One way to make illegal profits at the time was to buy 
crude oil at a classification that had a low maximum price, 
illegally alter that classification, and then sell it at a 
higher maximum price. To avoid getting caught, a buyer would 
often arrange for the oil to be repeatedly bought and sold 
through a series of oil resellers, called a daisy chain, thus 
effectively disguising the change in classifications through a 
blizzard of paperwork.
    Now, as I understand it, the prosecutors allege that Rich 
and Green and their companies engaged in a number of daisy 
chain oil transactions, reaping illegal profits on millions of 
barrels of crude oil. In carrying out this scheme, they 
allegedly prepared numerous false invoices and other documents 
as well as more than one set of books. Ultimately, the scheme 
netted Rich and Green over $100 million in illegal profits.
    The prosecutors allege, then, that the scheme violated both 
the Federal energy law and the RICO statute. Once Rich and 
Green had made their illegal profits, they moved this money 
offshore to hide it from the IRS. Not surprisingly, they filed 
false tax returns, omitting this income. Hence, the tax evasion 
charges.
    Finally, while Americans were being held hostage in Tehran, 
Rich and Green illegal bought millions of barrels of crude oil 
from Iran. They then took a number of steps to disguise these 
purchases, including using a secret code. In 1984, as I 
understand it, their companies pled guilty to those charges, 
However, Rich and Green fled the country, ending up in 
Switzerland, where prosecutors attempted to extradite them. 
Switzerland, of course, refused to hand them over.
    Now, does this accurately set forth the charges?
    Mr. Quinn. It accurately reflects the allegations that were 
made, but there are answers at each point. And, frankly, the 
attachments to our pardon application, including the arguments 
we made to the Southern District in my letter in 1999, as well 
as the presentation made by Mr. Urgenson several years earlier, 
address each and every one of those allegations.
    The tier trading or Daisy Chains, as you call them, were 
not themselves illegal. What, in essence, was going on here was 
that companies like ARCO structured transactions that would 
enable them to take, by way of example, a barrel of domestic 
oil for which they could only charge $10, move it to a reseller 
who, as you say, in turn would transfer it, and in the course 
of doing that end up getting $30 for that barrel of oil. That 
set of transactions was permissible under these complex 
regulations.
    But if you think about this, what is going on is that ARCO 
has allowed somebody to take a barrel oil that they could only 
get $10 for and end up getting $30 for it. Well, ARCO and the 
other major oil companies didn't want to do that. So Rich 
helped them--
    Senator Feinstein. Are you saying this was common practice 
at the time for major oil companies?
    Mr. Quinn. I am saying that ARCO and other major oil 
companies engaged in these activities with the effect of ending 
up getting more for a foreign barrel of oil than it was worth. 
And when you average the two, instead of getting $10 for that 
barrel of oil, they were, in effect, getting $27.50.
    The Department of Energy went after ARCO for doing that and 
said, you are misleading us about these domestic transactions 
in your failure to link them to the foreign transactions. The 
Department of Energy went after ARCO for hundreds of millions 
of dollars and won, and in the course doing that concluded that 
Rich, in his accounting, has properly linked the foreign and 
domestic transactions and that ARCO had not.
    Now, by the way, I alluded very quickly to the analysis 
undertaken by Professors Wolfman and Ginsburg, and all of the 
allegations that you recited were before the tax professors 
when they did their analysis.
    Senator Feinstein. I am told there are two sets of books 
and that those professors were only given one set of the books. 
Is that correct?
    Mr. Quinn. I do not believe that is the case. I believe the 
tax professors knew that the Southern District claimed there 
was a duplicate or second set of phony books. But our response 
is that there was not a second set of books. There was a ledger 
by which Rich and people like ARCO were keeping track of the 
money they needed to get back for making these under-priced 
domestic trades.
    Senator Feinstein. Are you saying that Mr. Rich essentially 
did the same thing that ARCO did, except ARCO got away with it 
at the time and he did not and so his companies pled guilty?
    Mr. Quinn. Senator, I am not only saying they did the same 
thing. The transactions, as I understand it, were structured by 
the oil companies, not by Rich. Rich facilitated them.
    The guilty plea--frankly, you are familiar with the 
draconian asset forfeiture provisions of RICO. What Marc Rich 
would say to you is that they entered into that corporate 
guilty plea as the only thing they could do to keep the company 
because had they not done that, under the forfeiture provisions 
they could have lost the entire company and all of its assets.
    Senator Feinstein. Let me ask this question. You have 
asserted that as part of your deal with President Clinton, Rich 
waived all statute of limitations defenses. In theory, the 
Government then could still pursue Rich in civil court. The 
President has also offered this argument in defense of the 
pardon.
    However, my understanding is that since Rich's companies 
paid all the back taxes, Rich may owe nothing and the statute 
of limitations waiver becomes irrelevant. Do you agree that 
this waiver is irrelevant?
    Mr. Quinn. No, I do not, Senator, and I think frankly that 
that analysis mixes up the tax and the energy regulatory 
regimes that could apply here.
    Senator Specter. Do you have many more questions, Senator 
Feinstein?
    Mr. Quinn. Can I just give the Senator--
    Senator Feinstein. I didn't realize my light went on. I 
apologize, Mr. Chairman. I am sorry.
    Mr. Quinn. What I would like to do, Senator, is just cite 
to you a section of the U.S. Code, 15 U.S.C. 754, sub (3(a)(4), 
and I am happy to provide you with a copy of it today, which I 
believe would provide the basis for at least an argument by the 
Department of Energy that Messrs. Rich and Green could be held 
to account civilly for the transactions that you and I 
discussed a few minutes ago. I hasten to add that they would, 
of course, defend themselves on the merits in any such civil 
action, but they have agreed to subject themselves to such a 
proceeding.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman.
    Senator Specter. Thank you, Senator Feinstein.
    Senator DeWine?
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Quinn, you are obviously a good lawyer, a strong 
advocate doing what you should be doing as far as presenting 
your case today. Let me look at some of your written testimony 
and then ask you a question about it.
    You say, ``Put simply, the indictment against Mr. Rich was 
flawed, not just in my view but also in the views later 
expressed by two departments of the U.S. Government. The case 
was built on a perception of the transaction later directly 
contradicted by the Department of Energy. It was 
inappropriately ratcheted up into a RICO case in a manner that 
the Department of Justice later acknowledged was 
inappropriate.''
    Now, unfortunately we don't have the prosecutor here. We 
don't have the Justice Department here. We don't have anybody 
to give the counter-argument for that today. But you are not 
inferring or stating that the Justice Department today thinks 
this was a bad case or that they shouldn't have brought the 
case or that they think it is a flawed case. I mean, that is 
not their position, is it?
    Mr. Quinn. Senator, if the prosecutors were here, they 
would tell you I am full of beans. They feel very different 
about this than I feel about it. They feel differently than the 
reputable and good attorneys who I joined on this defense team 
feel about it.
    I, as you indicated, made a case as an advocate on the 
merits. I think it was a solid case. I think that each element 
of the indictment can be attacked. I do believe that if one 
considers that RICO really was, at least in the minds of Rich 
and Green, kind of the straw that broke the camel's back here--
and, look, we can disagree with whether or not that justified 
the actions they engaged in. And, of course, as you know, I was 
not their attorney at the time that they chose not to return to 
the United States, and I hope I can honestly say to you that I 
would have encouraged them to do so at that time and stand 
trial.
    But RICO really was a sledgehammer here, and it was subject 
to the kind of criticism I recited from opinion pages in any 
number of good publications, like the Wall Street Journal and 
the New York Times, and it was what they thought would prevent 
them from getting a fair trial. And the Department of Justice 
itself, then, in 1989 acknowledged that RICO shouldn't be used 
in cases like this.
    On the second point, I think it really is pretty remarkable 
that you had the prosecutors in the Southern District arguing a 
tax case on the basis of an analysis of the transactions that 
was 180 degrees different from the analysis of the same 
transactions by the very regulatory department charged with 
enforcing these price control regulations. So I don't think it 
is unfair to say that the Government was really of two minds 
here, and that has to call in question some of the core charges 
that were laid down here.
    Senator DeWine. Mr. Quinn, thank you. Mr. Chairman, thank 
you.
    Senator Specter. Thank you very much, Senator DeWine.
    Senator Sessions?
    Senator Sessions. Thank you very much.
    You indicated that the goal was to bring resolution to the 
indictment, Mr. Quinn, and I think that wasn't the goal. The 
goal was to get the charges dismissed. The way you normally 
bring a resolution to an indictment is to come forward and face 
the charges.
    Mr. Rich was indeed of that very rich, billionaire-level 
wealth. He was obviously arrogant, and he determined he was 
going to try to buy his way out of this deal, it seems to me, 
and not face the music like every other poor person who gets 
hauled before a court.
    Would you comment on that?
    Mr. Quinn. Yes, Senator. Certainly, when I undertook this 
representation and communicated with Main Justice and with the 
Southern District, it was my hope and my aim to persuade them 
to drop the charges.
    Senator Sessions. Let me pursue that a minute. Was there a 
predecessor counsel to you on this matter?
    Mr. Quinn. Yes, sir.
    Senator Sessions. And they had been negotiating with the 
United States Attorney's office in the Southern District of New 
York for quite a number of years, had they not, off and on?
    Mr. Quinn. No, sir. In point of fact--
    Senator Sessions. There had been no discussions about Mr. 
Rich appearing and answering the charges?
    Mr. Quinn. I want to be careful here because I am under 
oath. It is my impression that since at least the mid-1980's, 
the U.S. Attorney's office in New York would not sit down and 
discuss the merits of the case, the merits of the case.
    There was a conversation when now Judge Obermeier was in 
the U.S. Attorney's office, but as I understand it, he 
indicated in the course of that conversation that he would not 
agree to devote the resources of the office to review the 
merits of the case without pre-conditions that the clients 
thought were impossible to agree to.
    But at least since the late 1980's or 1990, and in 
particular, Senator, since the analysis by the tax professors, 
it has been the view of the attorneys who preceded me on this 
matter that the U.S. attorney's office would not give anything 
approaching a thoroughgoing review of that tax opinion.
    Senator Sessions. They were taking the view, I think, that 
most United States attorneys' offices take that you don't 
negotiate with a fugitive.
    Mr. Quinn. You are quite right.
    Senator Sessions. They have to submit themselves to the 
authority of the court before you enter into a negotiation.
    Mr. Quinn. You are quite right, Senator, and may I just 
address that?
    Senator Sessions. You mentioned that these were tax 
charges, but the RICO had to have been founded on false claims 
or false statements or mail fraud. Was it mail fraud charges or 
wire fraud that formed the basis for the RICO case?
    Mr. Quinn. Yes, sir, and can I address that and can I also 
just back one--
    Senator Sessions. I know what you are saying. You are 
saying it was fraud that involved tax. But it also had to be 
fraud or they couldn't have charged it as a mail fraud, isn't 
that right?
    Mr. Quinn. The Supreme Court in the McNally case, the later 
McNally case, in effect, disallowed the fraud charge that was 
the RICO predicate. You are quite right--
    Senator Sessions. So you think under McNally that these 
charges would have been invalid?
    Mr. Quinn. Yes, sir.
    Senator Sessions. Then you were home free. Why didn't you 
come in and move to dismiss?
    Mr. Quinn. Well, they couldn't come in and make a motion to 
dismiss because they weren't within the jurisdiction of the 
court, so they were in this catch-22. And with respect to--
    Senator Sessions. They had a decision to make, either come 
in, submit themselves to the court and file a motion to dismiss 
the RICO charges.
    Mr. Quinn. Right, right.
    Senator Sessions. Wouldn't that have been the proper thing 
for them to do?
    Mr. Quinn. It certainly would have been an alternative, but 
they were unwilling to come back and they were--
    Senator Sessions. That is right. They were unwilling.
    Mr. Quinn. Yes.
    Senator Sessions. They didn't want to do what everybody 
else has to do. They wanted to beat the system another way.
    Mr. Quinn. Correct. Now, may I add one other point about 
this fugitivity because you are quite right that the Southern 
District took the position that it would not have discussions 
with fugitives or absent persons? And I would be happy to send 
to you a document that was prepared for me and for Mr. Libby 
which reports on a series of plea bargains with domestic and 
international fugitives by various U.S. attorneys' offices.
    Senator Sessions. Well, I know you could do that.
    Mr. Quinn. I am to submit it.
    Senator Sessions. They took the position they didn't want 
to do that.
    Could you have approached the Chief of the Criminal 
Division and asked for an independent review of the RICO 
charges and gotten a high official in the Department of Justice 
that wasn't a part of the prosecution team?
    Mr. Quinn. Well, as a matter of fact--
    Senator Sessions. Did you ever think about asking for that?
    Mr. Quinn. I think, in effect, we did, sir.
    Senator Sessions. Did you formally ask for that and did you 
have a review by anyone in the Department of Justice occur?
    Mr. Quinn. Yes, I think we did. When I communicated with 
Mr. Holder in 1999, I provided to him materials that outlined 
all the arguments we made against the indictment, and we copied 
Mr. Robinson in the Criminal Division and the head of the Tax 
Division on those arguments. After the Southern District--
    Senator Sessions. Did you ask them to overrule the opinion 
of the United States attorney in Manhattan?
    Mr. Quinn. In effect, I sure did.
    Senator Sessions. Did they do so?
    Mr. Quinn. No, they did not.
    Senator Sessions. So that would have been a proper avenue, 
I think, if you were unhappy with the charge of the United 
States attorney. And isn't it true that the Attorney General 
could, in fact, remove the United States attorney if they 
failed to comply with a decision of the Attorney General?
    Mr. Quinn. Of course, but all I am saying to you, Senator, 
is that I believe we availed ourselves of that avenue with no 
success.
    Senator Sessions. But this is President Clinton's 
Department of Justice.
    Mr. Quinn. I understand that.
    Senator Sessions. They work for him. So you are saying that 
President Clinton couldn't get the Department of Justice to 
even review the case for criminal appropriateness, and so he is 
going to grant a pardon about a complex matter, of which I 
submit he knew very little law. He may have known the politics, 
but he didn't know the law.
    Why wouldn't that have been the appropriate action for the 
President, if he was troubled by a prosecution to say I want 
the Chief of the Criminal Division--
    Senator Specter. Do you have many more questions, Senator 
Sessions?
    Senator Sessions. Yes, but my time is out.
    Senator Specter. Well, finish this one.
    Senator Sessions. So why wouldn't that have been the 
appropriate thing rather than just ripping out the legitimacy 
of the pardon?
    Mr. Quinn. Senator, it would have been an alternative, but 
it is not one I asked him to take.
    Senator Sessions. I would suggest that had that happened, 
you wouldn't have received the opinion you wished.
    Senator Specter. Thank you, Senator Sessions.
    Professor Gormley, you say that the pardon of President 
Nixon didn't look too good in 1974, but it looks pretty good 27 
years later. Do you think the pardon of Marc Rich will look 
pretty good in 2028?
    Mr. Gormley. I don't, Senator Specter, and my point is that 
I think the danger in tinkering with the Constitution isn't the 
Marc Rich cases that I think are always going to be, as I 
referred to, the bad pennies. One can question them. There are 
a number of instances in history.
    Lincoln was accused of favoring his friends from Kentucky. 
Thomas Jefferson pardoned members of the anti-Federalists who 
were supporters of his. There are always those instances, and I 
think that would actually be the good part of having something 
like the Mondale amendment, that you could get at those 
questionable pardons.
    Senator Specter. Do you think there is a good part to the 
Mondale amendment?
    Mr. Gormley. Yes, that is the good part. The bad part, just 
to make clear, is I am concerned with the more difficult ones 
like the Ford pardon of Richard Nixon, like perhaps President 
Buchanan's pardoning of the Mormon settlers during a very 
difficult time of insurrection, like perhaps President Bush's 
pardoning of the Iran-contra defendants, very controversial at 
the time.
    There has to be a way to put closure to some of these 
things, and I think if you put them up to a vote at the time 
they would be vetoed, and that is my concern, Senator Specter. 
It is not that you wouldn't occasionally find some that 
legitimately you might want to go in and overturn.
    Senator Specter. But as you characterize a veto, if two-
thirds of the House and two-thirds of the Senate say no, it is 
true it is contemporaneous. It may take a long time for the 
Mondale amendment to succeed. The ERA still hasn't succeeded. 
But you can't override a Presidential veto very easily on 
legislation and my instinct is it would be a fairly tough vote 
to get two-thirds in the Congress.
    Mr. Gormley. I think it would be tough, but again picture 
the Ford pardon of Nixon. You would have some Members of 
Congress naturally who would vote along party lines in a 
situation like that, and then you would have a number of 
Members of the House and of the Senate who would have this 
enormous pressure on them from their constituents who are 
outraged by this who end up buckling under to that pressure. 
That would be my concern.
    Senator Specter. So you think a national outrage is really 
something that ought to be ignored, a cooling-off period, 27 
years, and then have the vote?
    Mr. Gormley. Well, no, but the point is that if we put a 
thumbs-up or thumbs-down system on many of these sensitive 
pardons and we just let the public input take over, we would 
make some bad decisions, I think.
    Senator Specter. But when you talk about public input and 
you talk about two-thirds, the public reaction is not exactly 
an irrelevancy. When you deal with some of the historical 
precedents, maybe yes, maybe no. You have a fair size core of 
independents in the Congress.
    Let me turn to Professor Schroeder for a question. 
Professor Schroeder, you say, and I agree with this, that we 
ought to pursue remedies which are non-constitutional means, 
and you cite the statute. What do you think from that statute 
or other non-constitutional means would be effective to deal 
with this issue? I incorporate by reference, Professor 
Schroeder, my question to Mr. Quinn.
    Mr. Schroeder. Senator Specter, I think at the end of the 
day if the President wants to grant a pardon which is highly 
unpopular or quite controversial or contentious, under the 
current constitutional regime he or she is going to be able to 
do that. The Constitution gives them that power.
    That said, I am somewhat conflicted here because I, like 
Mr. Quinn, spent some time defending executive power when I 
worked at the Justice Department in the Office of Legal 
Counsel. But then I have also spent some time working for this 
committee, so I respect the power of the Congress as well.
    You could set up by statute, in my opinion, that would set 
out a list of procedures, requirements, for a pardon 
application that went into the system--
    Senator Specter. Statutory?
    Mr. Schroeder. Yes, that would have to be complied with by 
the Pardon Attorney, not a restraint on the President, but by 
the Pardon Attorney. You could then, I think, in that same 
enactment encourage the President--and that is all you could 
do--to utilize that system in all except the very rarest of 
circumstances.
    And if you wanted to go further, I believe under the 
Constitution using your power of the pursue you could set up a 
system whereby if the President wanted to do something 
extraordinary, you could withhold the expenditure of Federal 
funds in the Justice Department to assist in that regard. So 
you would put tremendous pressure on the President.
    He could do his own investigation. He could talk to his own 
advisers, he could talk to the Attorney General. But you 
couldn't have anybody in the Justice Department or the Pardon 
Attorney picking up the phone and making a long-distance phone 
call on the Government's nickel or sending the FBI out to do 
investigations.
    So you would have a kind of two-tiered system when you were 
in the system. You have got this transparent process, but you 
couldn't stop the President from going outside the system. But 
then you simply declare that if you are outside the system, you 
are on your own, Mr. President.
    Senator Specter. When you talk about withholding funding, 
somebody has suggested that if you take a look at this 
President and seek to reach him in a specified way, it would be 
a bill of attainder. Now, of course, a bill of attainder is a 
criminal reference, but could you constitutionally really 
direct a rifle shot at a President by withholding funding on a 
collateral matter, or taking away his pension--there is some 
talk about that--or taking away his Secret Service guard or 
making him have an office on the tenth floor?
    Mr. Schroeder. No, Mr. Chairman, I don't think at this 
juncture the Congress can or should do any of those things. I 
was talking about looking forward. You could set up a regime 
not to attack the President's salary, but simply to withhold 
from him the normal availability of Federal employees to vet 
and work on extraordinary pardons, if you wanted to do that, so 
that if he wanted to do something behind closed doors--
    Senator Specter. Well, that would cutting off your nose to 
spite your face if you cutoff the funding for people to vet 
extraordinary pardons. We want more people to vet them on the 
off chance that if he finds about them, he will do the right 
thing.
    Mr. Schroeder. Well, that would be the point of the first 
part of having a system of transparent vetting that the Justice 
Department had to employ whenever a pardon application came in 
the door or whenever the President referred one. But as long as 
you have got to deal with the fact that the President can act 
autonomously if he or she wants to, it seems to me if you 
placed those autonomous pardons outside the system, you would 
really be raising the stakes of justification of a President.
    Why, Mr. President, did you choose to go outside the system 
and not avail yourself of the normal apparatus, would become, I 
think, a quite salient question that might be very difficult 
for a President to answer unless he had a very good reason, in 
which case you would want him to do it.
    Senator Specter. Professor Becker, I have ignored the red 
light because there is only one other person who can follow my 
lead, and that is Senator Sessions, and he is welcome to do so 
when I finish.
    Senator Sessions. Go ahead. I am very interested in your 
questions.
    Senator Specter. I was intrigued by our conversation last 
week where you described your representation of President Ford, 
counsel to him on the Nixon pardon, and how that played through 
and how you made the suggestion as to your consulting with 
President Nixon and raised the issue that even with a pardon, 
there was still technically an opportunity for impeachment.
    Would you recount that for the record?
    Mr. Becker. Yes, sir. In August 1974, when President Nixon 
resigned and President Ford was elevated to the presidency, 
approximately 3 days later, after Mr. Nixon had arrived in 
California, he called the Ford White House and spoke to 
Alexander Haig, the Chief of Staff, and directed Mr. Haig to 
send to Mr. Nixon in California all the records, papers and 
tapes that had accumulated during the 5 years of the Nixon 
presidency.
    Those records, papers and tapes, particularly with 
reference to the tapes, had rather important significance to 
ongoing litigation and history. There were many people in the 
White House who felt that President Ford should comply 
immediately and send all of those documents and tapes to Mr. 
Nixon. There were a few people who felt to the contrary and I 
was one of those.
    President Ford asked the Justice Department to give him an 
opinion on the ownership issue of who owned those records, 
papers and tapes accumulated by a President who is no longer in 
office. And the Department of Justice ultimately gave President 
Ford an opinion that said they belonged to Richard Nixon; they 
are Richard Nixon's personal property.
    That gave rise to even greater pressure on the President of 
the United States, who had been President 2 weeks, two-and-a-
half weeks, from everyone in the White House, virtually, the 
Nixon staff inherited by President Ford, urging him and urging 
him to send those documents and tapes to San Clemente.
    To his great, great credit and political courage, President 
Ford refused to do so and insisted that those records would not 
leave the possession of the Government of the United States. I 
was asked to try to negotiate some disposition of those 
records, papers and tapes with Mr. Nixon and his counsel, Jack 
Miller.
    Those conversations led into conversations respecting the 
possibility of the issuance of a pardon to Mr. Nixon. I 
reviewed the precedents on pardon for President Ford, advising 
him of the scope of his Presidential power. One of the matters 
that we were concerned with was the obvious question, Senator, 
of pardon pre-indictment, pardon pre-conviction, and/or the 
question of whether or not, even if a pardon were issued, if 
the Senate chose to proceed with an impeachment trial of 
President Nixon with a House vote--what effect would a pardon 
have on the impeachment proceeding.
    The impeachment proceeding, even though of a resigned 
President, was technically possible. The impeachment of an 
executive involves three things from a constitutional 
standpoint--the loss of the office, which had already occurred 
by virtue of the resignation; the loss of the emoluments, which 
had not occurred by virtue of the resignation; and the loss of 
the right to hold high office in the future, which had clearly 
not occurred. So the Senate had a string of jurisdiction if 
they wanted to retain back in 1974 the question of an 
impeachment trial. Obviously, they did not do so.
    Ultimately, as you know, Senator, a series of lengthy 
negotiations occurred between myself and Mr. Nixon's counsel 
and Mr. Nixon in California that resulted in Mr. Nixon turning 
over the records, papers and tapes to the Government of the 
United States which were later modified and codified by an act 
of Congress.
    Senator Specter. Did you discuss with President Nixon or 
his counsel the technical possibility of an impeachment even 
after the President left office by way of resignation?
    Mr. Becker. I believe I discussed it with Jack Miller at 
one time. In my conversation with President Nixon, we did not 
discuss impeachment. We discussed other matters.
    Senator Specter. Was Jack Miller surprised to hear that 
that was a possibility?
    Mr. Becker. My recollection was that Jack adopted my view 
that it was a mere technical possibility and not likely in the 
present atmosphere.
    Senator Specter. Well, when you called my attention to it 
last week, it surprised me that that was an option. Somebody 
has said that the most effective remedy that we are talking 
about is hitting the ex-president where it hurts, on his 
legacy. I am not sure that that is incorrect, but I am not sure 
that that has a whole lot of impact either.
    One final question, Professor Becker, or maybe two final 
questions, or maybe more. Did you play any role in President 
Ford's decision to voluntarily testify before the House of 
Representatives Judiciary Committee?
    Mr. Becker. I am so happy you brought that up. There has 
been so much conversation about--
    Senator Specter. Professor Becker, I am glad someone is 
finally happy about something.
    Mr. Becker. I really want this record to be very clear that 
following the grant of the pardon in September 1964 to 
President Nixon by President Ford, there was a similar public 
reaction that we are witnessing today and a similar 
congressional reaction, in that the House of Representatives 
Judiciary Committee met to investigate the pardon of Richard 
Nixon by Gerald Ford.
    The distinctions, I think, Senator, end there because back 
in 1974, as soon as that committee was formed, President Ford 
voluntarily appeared before that committee, sat in a chair like 
I am sitting now before Members of the House of Representatives 
and said, my name is Gerald Ford, I am President of the United 
States, and I am here to answer any questions you have and I 
will stay as long as you have questions.
    Senator Specter. And he got some pretty pointed questions, 
too, didn't he?
    Mr. Becker. He did, sir, he did, and he answered every 
single one of them.
    Senator Specter. Do you think President Ford's decision to 
testify voluntarily has any relevance to today, to what former 
President Clinton ought to do?
    Mr. Becker. I don't want to give advice to President 
Clinton on what to do or what not to do, but I think President 
Clinton ought to take note of President Ford's openness and 
candor and frankness with the Congress and the American people 
back in 1974.
    Senator Specter. Senator Sessions, you have the final word.
    Senator Sessions. I suppose President Ford felt that he 
owed it to the American people that they understand fully why 
he did what he did so that they could properly evaluate his 
performance.
    Mr. Becker. Senator Sessions, that is indeed accurate, but 
even before President Ford appeared before the committee, he 
had lengthy press conferences on the question of a grant of a 
pardon. So the answer is absolutely yes.
    Senator Sessions. Well, that was an act of a courage, 
rightly or wrongly. He did what he thought was right and was 
willing to answer to the American people and explain it. I 
haven't seen that kind of reaction in former President Clinton. 
Thank you, Mr. Chairman, for your leadership. I think it has 
been important. Giving someone a pass for a criminal charge is 
not to be treated lightly and we should consider these matters 
in-depth.
    Senator Specter. Well, that concludes our hearings. Thank 
you very much, Professor Schroeder, Professor Gormley, 
Professor Becker, and Mr. Quinn.
    [Whereupon, at 1:28 p.m., the committee was adjourned.]
    [Questions and Answers and Submissions for the Record 
follow:]
    [Additional material is being retained in the Committee 
files.]

                         QUESTIONS AND ANSWERS

                                 U.S. Department of Justice
                   Office of the Assistant Attorney General
                                             Washington, D.C. 20530
                                                     April 10, 2001

The Hon. Orrin G. Hatch
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510

    Dear Mr. Chairman:

    This is to provide information responsive to Senator Feinstein's 
questions at the Committee's hearing on February 14, 2001 regarding 
clemency granted by President Clinton on January 20, 2001. We request 
that this information, which pertains to the role of victims in the 
clemency review process, be included in the hearing record.
    The impact on victims of the crime for which the applicant seeks 
executive clemency has long been a significant factor for the Office of 
the Pardon Attorney in its investigation of clemency petitions and in 
its preparation of the Department's advice to the President concerning 
whether a pardon or commutation should be granted. Since 1997, the 
portion of the United States Attorneys Manual that deals with the role 
of the United States Attorney in clemency matters (Section 1-2.111, 
USAM) has expressly noted the importance of providing information to 
the Pardon Attorney regarding victim impact in clemency cases. The 
practice of victim consultation in clemency cases has now been 
standardized by a regulation (28 CFR Sec. 1.6(b)) which applies to 
clemency petitions filed on or after September 28, 2000, but this 
reflects more of a continuation of past practice than the commencement 
of a new procedure.
    In response to Senator Feinstein's request, we examined pardons and 
commutations granted between December 1, 1999, and December 31, 2000. 
Of the ten commutations granted in this period, none involved an 
individual victim who suffered either physical or financial harm. Of 
the 147 pardons granted during this period, only two involved physical 
harm to persons or property. The victims were not consulted in these 
two cases. In both instances, the defendant/pardon applicant had been 
charged with a regulatory type offense, not an assault or property 
destruction offense. In one case, restitution had been fully paid many 
years ago, and the defendant had taken great pains not to hurt any 
persons and to do only damage to the personal property of an individual 
with whom he was having a personal feud. The other case involved merely 
bad judgment that resulted in an accident, and neither drugs nor 
alcohol were involved.
    I hope that this information is helpful. Please do not hesitate to 
contact me if you would like additional assistance regarding this 
matter.

            Sincerely,

                                           Sheryl L. Walter
                                  Acting Assistant Attorney General

                                

                                        Duquesne University
                                               Pittsburgh, PA 15282
                                                     1March 2, 2001

Hon. Patrick Leahy
Senate Judiciary Committee
Dirksen Building Room 224
Washington, D.C. 20510

    Dear Senator Leahy,

    Thank you for the thoughtful question posed as a follow-up to the 
Senate Judiciary Committee hearings held on February 14, 2001, relating 
to the Presidential pardon power. Your question is: ``Short of a 
constitutional amendment, what steps if any could Congress take to 
reduce the potential for Presidential abuse of the pardon power? ''
    This, in my view, hits at the heart of the issue initially posed by 
Senator Specter in convening the hearings; namely, what can be done to 
remedy actual or perceived abuses of the pardon power if we focus not 
on the specific controversy involving former President Clinton, but 
instead upon the broader goal of avoiding pardon-related problems in 
the future? I have taken the liberty of discussing your question with 
colleagues around the country, most of whom specialize in 
Constitutional law. The following are my thoughts, with advance 
apologies for not having more time to flush them out more thoroughly.
    Let me begin by saying that, in speaking with Constitutional 
scholars of all backgrounds--conservative, liberal, Republican and 
Democrat--I found very few who were enthused about the concept of 
amending the Constitution to limit the admittedly broad pardon powers 
that the Framers reposed in the President. My previous testimony before 
the Judiciary Committee, I believe, fairly summarizes the reasons that 
Constitutional scholars are wary about any such amendment. Within the 
existing Constitutional framework, however, Congress (as your question 
suggests) can take certain steps to reduce the chance of abuse and/or 
controversy with respect to future Presidential pardons. I will set 
forth several possibilities that are within the realm of Constitutional 
possibility.
                        A. Congressional Report
    First, and least controversially, Congress can publish a 
comprehensive Report at the conclusion of its hearings, setting forth 
specific recommendations directed to the Justice Department (including 
the Pardon Attorney's office) and the President, with respect to 
patching obvious holes in the pardon process. A detailed Congressional 
Report, to the extent that it identifies specific break-downs in the 
process with respect the President Clinton's end-of-term pardons (as 
well as problematic pardons granted by previous Presidents), can play a 
vital role in shaping internal DOJ reforms. As well, an objective and 
compelling Report will put future Presidents on notice that Congress 
and the American public are watching attentively. Although Presidential 
pardons have historically been subject only to perfunctory scrutiny 
during prior political eras, modern 21 th century research 
and communication technology permits a much more swift, searching and 
intelligent inquiry of such Presidential action. The present 
Congressional hearings, if they culminate in a neutral yet frank 
assessment of potential weak-spots in the pardon mechanism, will 
provide a useful starting point for healthy internal DOJ and White 
House reforms.
                        B. Reporting Procedures
    Second, Congress might consider enacting legislation (or 
promulgating a non-binding resolution) that established certain non-
intrusive reporting requirements, by which the Department of Justice 
would collect and publish certain information with respect to pardons 
granted and denied. Procedures could be established both at the intake 
phase, and at the concluding phase of the process after the President 
has granted or denied each pardon or commutation.
    It should first be made clear that any time Congress seeks to 
impose restrictions or conditions directly on the President with 
respect to the exercise of his or her pardon power, this raises serious 
separation of powers problems. However, minimally intrusive procedures 
could probably be constructed vis-a-vis the Department of Justice--
informational in nature--ensuring that Congress and the public are kept 
apprised of pardons sought and granted.
    Atthe intake stage, Congress might provide that any one interested 
in applying for clemency should file a document with the Department of 
Justice, accompanied by certain specific information. This basic 
information might include the name of the individual seeking a pardon 
or commutation; the crime(s) for which clemency is sought; current 
location and status of the individual seeking the pardon etc. The 
legislation or resolution might also provide that DOJ should provide a 
periodic report to Congress with respect to all pardon applications 
filed, thus causing the intake information to be transmitted to 
Congress for informational purposes. A standing Committee could be 
established in Congress to keep abreast of such data.
    It should be stressed that, whatever procedures are set forth by 
Congress, a President cannot be force to adhere to them. Indeed, the 
President's pardon power is virtually absolute; he or she can pardon an 
individual whether or not that person follows the procedures or applies 
to DOJ at all. However, one would expect that--except in unusual 
circumstances--a President would be inclined to channel pardon 
applications through the requested intake procedure. Likewise, one 
would expect that the Department of Justice would not take offense at 
this minimally intrusive process, designed to provide Congress with 
periodic information concerning the flow of pardon applications and 
dispositions. Indeed, the above-described intake procedures could 
simply be layered atop the existing, more extensive DOJ regulations 
that already govern pardon applications. The Congressional intake 
process--with its concomitant reporting feature--would guaranty a 
regular flow of non-privileged information to the legislative branch. 
This would put Congress in a better position to carry out its lawmaking 
powers (as discussed below). It would also place Congress in a better 
position to offer its own input to the President with respect to 
requested pardons, and to exert political pressure upon the executive 
branch if a specific pardon was deemed objectionable. The President, of 
course, would be free to bypass the Congressionally-created application 
process, if sensitive national security concerns or other exigencies 
required that the potential pardon remain confidential. However, the 
President would remain politically accountable for that decision.
    Procedures could also be established to govern the exit phase of 
the process. Congress might provide that, after clemency requests were 
acted upon, the Department of Justice would supply Congress with 
certain non-privileged information concerning those pardons that were 
actually granted or denied. The information requested at this stage 
would have to be carefully circumscribed, so that it did not intrude 
upon the confidential relationship between the Attorney General and the 
President, or the core functions of the executive branch. Thus, if it 
wished to accomplish this goal in the least intrusive manner, Congress 
might set forth a list of certain basic procedures that it deemed 
desirable for the Department of Justice anal the President to follow 
with respect to evaluating and acting upon pardon requests. Such 
procedures might include: following the initial DOJ intake process 
(described above); conducting an FBI check upon each individual 
requesting a pardon; consulting with the office of the prosecuting 
attorney in the jurisdiction(s) in which the individual was 
investigated and/or convicted; providing a confidential written 
recommendation to the President with respect to whether clemency is 
appropriate; etc. After setting forth this checklist of desire 
procedures, Congress might then provide that the Department of Justice 
should publish a list of each pardon granted or denied, within a 
specified time period after Presidential action was taken, indicating 
whether the procedures had been followed. The Justice Department would 
simply designate whether the pardon fell within Category A (i.e. those 
pardons that followed the Congressionally recommended processes) or 
Category B (those pardons that did not follow such processes). In this 
fashion, both Congress and the American public could remain informed 
with respect to the basic procedures (or lack thereof) that were 
followed in applying for and receiving Presidential pardons.
    It should be emphasized that any attempt by Congress to require the 
Department of Justice or the President divulge their specific reasons 
for granting or denying a pardon, or their recommendations with respect 
to the same, would likely constitute an encroachment upon the domain of 
the executive branch. Any legislation or resolution should limit itself 
to seeking basic, non-privileged information concerning the pardon 
process. Any legislation that directly or indirectly forced the 
President or Justice Department to reveal the motivations or thought-
processes underlying specific pardon decisions, would most likely damn 
itself to unconstitutionality.
                      C. Registration Requirement
    Several other steps could be taken to eliminate potential abuse 
with respect to the existing pardon process. First, Congress might 
require that any non-lawyer agent or other person representing an 
individual seeking a pardon or commutation, who receives remuneration 
or any thing of value for such services, register with the Department 
of Justice, much like a lobbyist. Actual remuneration received would, 
in turn, have to be disclosed to the Internal Revenue Service. The 
pardon power, because it is absolute, carries with it uniquely grave 
possibilities for abuse. The most obvious of these is outright bribery. 
In order to prevent abuses that may remain shielded even from the eyes 
of the Justice Department and/or the President, Congress could require 
non-lawyer agents, and other individuals representing clients in pardon 
cases, to register and make public their representation. This would 
throw open the process to the light of public scrutiny, rather than 
fostering the appearance of secretive deal-making. (With respect to 
lawyers representing clients in pardon requests, this situation poses 
unique issues due to the attorney-client privilege and the applicable 
Canons of Ethics. Congress might wish to avoid this treacherous 
terrain.)
    On the flip side, any individual seeking a pardon could be required 
to disclose actual payments (or promises of payment) made to non-lawyer 
agents or other persons for services rendered. Likewise, individuals 
seeking a pardon could be required to disclose any contributions made 
within a specified period to the President, his or her political party, 
and/or any other entity that might directly or indirectly benefit the 
President and/or Attorney General who are acting upon the pardon 
request.
    Finally, Congress might be able to require the President himself to 
disclose, within a specified time period after granting a pardon, any 
contributions received by a person receiving a pardon, or any financial 
stake in any entity associated with such person. This would be no 
different than the disclosures routinely required of Supreme Court 
Justices and federal judges with respect to financial stakes in 
entities appearing before them. Admittedly, this option raises unique 
problems because it4 applies directly to the President, who possesses 
plenary power in issuing pardons. Yet requiring; disclosure of actual 
or potential conflicts of interest may be within acceptable 
Constitutional boundaries, consistent with the Framers' general intent. 
They never meant to countenance abuse of the pardon power. In general, 
no public official is permitted to act based upon self-interest without 
disclosing the existence of such an interest. Although it is true that 
nothing in the Constitution would empower Congress to prohibit 
Presidential pardons, even where based upon a conflict of interest 
(short of actual bribery, which is a crime), Congress may be permitted 
to require that the existence of an actual or potential conflict be 
disclosed, so that the public and Congress can assess it on its merits. 
This minor intrusion upon the President's sweeping pardon power may 
flow naturally, just as it flows naturally that the granting of pardons 
must be made part of the public record (ratbar than being kept 
secretive).
    Congress might derive its power to enact the above sorts of non-
intrusive measures from several sources within the Constitution. First, 
Congress is empowered to enact federal criminal laws. It must 
continuously assess existing federal criminal statutes, and adapt them 
to changing times. A simple reporting requirement channeling regular 
information to Congress concerning Presidential pardons (particularly 
those clemency requests that are granted) would assist the legislature 
in evaluating intelligently the efficacy of its criminal statutes. Many 
pardons, throughout American history, have been granted to soften the 
impact of criminal laws which Presidents deem unduly harsh. If Congress 
is to be able to process this information, and amend its laws 
intelligently to respond to flaws and gaps in the existing federal 
criminal laws, allowing some modest appraisal of the ebb and flow of 
Presidential pardon activity would assist that goal. Moreover, it seems 
relatively non-intrusive.
    A second basis for Congress's ability to take non-invasive action 
in this area might flow from its impeachment power. The Constitution 
vests sole power to impeach in the House of Representatives. Sole power 
to try impeachments resides in the Senate. It is clear from the debates 
concerning the Presidential pardon power, at the time of the 
Constitution's ratification, that the Framers envisioned impeachment as 
the only real deterrent to the improper exercise of the pardon power. 
Pardons may be dispensed at any time throughout a President's tenure. 
One powerful disincentive for inappropriate or irregular pardons, in 
the Framers' minds, was that Congress would be in a position to impeach 
a President in the case of an egregious abuse of that power. Thus, 
allowing non-privileged information concerning Presidential pardons to 
be channeled to Congress, would allow the legislative branch to stay 
alert for potential abuses that might trigger the initiation of an 
impeachment inquiry, in rare cases.
                  D. Eliminating Emoluments of Office
    There is a final step that Congress might take with respect to 
deterring inappropriate Presidential pardons. I have personal concerns 
about the wisdom of this option, yet I set it forth in the interest of 
open discussion. Congress would have the power to enact legislation, I 
believe, which provided for the stripping of the President's emoluments 
of office--pension, etc.--after he or she left office. This could be 
triggered where the President was convicted of certain specified 
crimes, one of which might be bribery flowing from the abuse of the 
pardon power.
    I recognize that some scholars--including Professor Benton Becker 
who also testified at the Senate Judiciary Committee hearings--believe 
that there is some hypothetical possibility of impeaching a President 
after he or she leaves office. This, in effect, would strip the 
President of the emoluments of office without the need for additional 
legislation. However, I find the ``impeachment after leaving office'' 
argument to be unconvincing.
    First, the text of the Constitution (Article I, Section 3, clause 
7) specifically refers to the consequence of impeachment as ``removal 
from office.'' This language strongly implies that impeachment is an 
option only while the President occupies office. Second, many scholars 
today (including myself) concur that a President cannot be subjected to 
indictment or criminal prosecution while in office. Rather, impeachment 
is the only remedy for a Chief Executive still serving his or her term. 
Criminal prosecution must await removal from, or vacating of, the Oval 
Office. This strongly ironies, conversely, that criminal prosecution is 
the only recourse against a President afer he or she leaves office. 
Impeachment and criminal prosecution seem to be mutually exclusive.
    So the ``impeachment after leaving office'' approach, I believe, 
provides no basis for stripping a President of benefits. Yet I do not 
see any impediment to Congress enacting a statute that provides that a 
former President (or any other federal official) shall forfeit his or 
her pension and other emoluments of office after he or she leaves 
service, if convicted of certain specifically-enumerated crimes. Of 
course, I assume that Congress would not wish to include speeding 
tickets or minor misdemeanors on this list. But Congress might choose 
to include bribery among the specified offenses, whether that crime was 
committed during the President's term in office (he cannot be tried and 
convicted until after he leaves office) or after he has returned to 
civilian life. In either a statute that took away the President's 
benefits based upon criminal conduct, I believe, would rest safely 
within the bounds of the Constitution.
    I hasten to add, however, that such a law would not be legitimate 
if applied retroactively. It could not, for instance, be applied to 
strip President Clinton of the emoluments of his office. Rather, such a 
statute could only apply to future Presidents to avoid constituting an 
ex post facto law.
    Of all of the options set forth in this correspondence, the last 
proposal troubles me the most. I can foresee the potential for abuse if 
certain political factions undertook a unified effort to hound a former 
President after he or she left office, in order to gain a criminal 
conviction and leave him or here effectively ruined and impecunious. 
Moreover, would we strip a former President of Secret Service 
protection, because he or she had committed a crime? This might only 
invite attempts on the life of the former President and create security 
nightmares. I see numerous drawbacks lurking beneath the surface of 
such potential legislation. Nonetheless, I mention this option because 
it is the only valid approach (in my view) that would allow Congress to 
strip a former President of the emoluments of office, based upon an 
abuse of the pardon power.
    In the end, most of the proposals that I have set forth in this 
letter require voluntary compliance by the Department of Justice and/or 
the President. Given the strong powers of the President in the area of 
granting pardons, any effort by Congress to gain information or 
establish procedures--if pushed to the mat--would probably fail if the 
executive branch chose to defy the legislation or resolution. Yet in 
this twilight area of criminal justice, were Congress shares some power 
with the executive branch to act responsibly, the Constitution may 
leave room for interplay and cooperation between the two branches of 
government (much like the War Powers Resolution--which is observed more 
as a voluntary request than as a mandate). In the large run of 
situations, reasonable Congressional requests in this twilight zone 
would probably be honored.
    I do not take a position, one way or another, with respect to any 
of the specific proposals that I have outline above. Rather, I am 
seeking to respond objectively to your question, by setting forth those 
options that are within the realm of Constitutional possibility, should 
Congress seek to examine alternatives short of amending the 
Constitutional possibility, should Congress seek to examine 
alternatives short of amending the Constitutional pardon power. 
Although I feel rather strongly that a Constitutional amendment of the 
Presidential pardon power is inadvisable, I feel less opposed to the 
notion that Congress might take some reasonable, non-intrusive step to 
make the pardon process work more smoothly. This would be in the best 
interests of all three branches of government, it seems. Ultimately, it 
would help restore public trust in the process.
    Those are my views, in response to your excellent question. If I 
can be of any further assistance to this Committee, please do not 
hesitate to let me know.

            Warm regards,

                                                Ken Gormley
                                                   Professor of Law

                       SUBMISSIONS FOR THE RECORD

     Statement of Margaret Colgate Love, Attorney, Washington, D.C.

    My name is Margaret Love, and I am a lawyer in private practice in 
Washington. From 1990 to 1997 I served as Pardon Attorney in the 
Department of Justice, and in that capacity I had primary 
responsibility for investigating and making recommendations to the 
President on petitions for pardon and commutation of sentence. For two 
years prior to that time I served on the personal staff of the Deputy 
Attorney General, where I oversaw the operation of the Office of the 
Pardon Attorney. I therefore had firsthand experience with the 
administration of the pardon power during the administrations of 
Presidents Bush and Clinton, and I am also familiar with pardoning 
practices in previous administrations. Finally, I have studied and 
written about the origins and rationale of the pardon power, and its 
evolving function in the federal criminal justice system. I described 
the recent atrophy of the pardon power in an article published last 
spring. See ``Of Pardons, Politics, and Collar Buttons: Reflections on 
the President's Duty to Be Merciful,'' 27 Fordham Urban L. Rev. 1483 
(2000).
    I do not intend to speak to the merits of any particular clemency 
cases decided by President Clinton in his final weeks in office, nor 
will I speculate about the way in which particular decisions were 
reached. Rather, I will comment generally on the way President 
Clinton's pardoning practices differed from the practices of his 
predecessors, and offer some suggestions about how the administration 
of the President's pardon power can in the future be reformed so that 
it can once again play the role envisioned for it by the Framers of the 
Constitution.
                         Historical Background
    The Attorney General has been responsible for advising the 
President on all applications for executive clemency since the middle 
of the 19'' century. The Attorney General's central role in 
administering the constitutional pardon power reflects and reinforces 
the link that has historically existed between clemency and the day-to-
day operation of the federal criminal justice system. Until quite 
recently, pardon could be counted on to assure a fair result in 
individual cases, to signal the President's law enforcement priorities, 
and to underscore the value of rehabilitation as a goal of the justice 
system.
    In 1898 the first clemency rules promulgated by President McKinley 
directed all applicants for executive clemency to submit their 
petitions to the Attorney General, and specified how such applications 
would be processed within the Justice Department. Over the next hundred 
years these clemency regulations would be reissued on several 
occasions, but they remained remarkably similar in each new iteration, 
providing perhaps our most venerable and consistent framework for 
governmental decisionmaking.
    Prior to President Clinton's final grants, the number of situations 
in which pardon was granted without a prior Attorney General 
investigation and recommendation pursuant to these regulations could be 
counted on the fingers of one hand. (Notable exceptions are President 
Ford's 1975 pardon of Richard Nixon, President Reagan's 1981 pardon of 
two FBI officials being prosecuted for authorized illegal searches, and 
President Bush's 1992 pardon of six Iran-Contra defendants.)
    This is not to say that the President has always followed the 
advice of his Attorney General, though the records of the Pardon 
Attorney and my own experience indicate this was usually the case. But 
the practice gave the President full access to the facts of a case, to 
the law enforcement perspective on its merits, and to the counsel of a 
key member of his Cabinet. And, because the Attorney General never 
divulged the nature of his recommendation, the President could deflect 
at least some criticism resulting from a particular grant by referring 
to his reliance on the Attorney General's advice. Until recently, most 
pardon warrants signed by the President contained a phrase alluding to 
the Attorney General's recommendation.
    This system worked efficiently and for the most part quietly, 
resulting in over a hundred grants of pardon and commutation almost 
every year between 1900 and 1980, most of them to ordinary individuals 
convicted of garden variety crimes. Pardon warrants were issued four or 
five times a year, and there was no particular increase in grants at 
the end of an administration. While there was an occasional 
controversial grant, the only pardon-related scandals during the 20' 
century involved the rare situation that was handled outside of the 
normal process (Nixon and Iran-Contra).
    Within the White House, the business of reviewing and deciding 
clemency cases forwarded from the Justice Department became, along with 
judicial selection, part of the routine housekeeping business of the 
White House Counsel's office. Until the Clinton administration, this 
formal and regular process was scrupulously observed by the White 
House, even after the instance of pardoning began to decline during the 
administration of President Reagan.
         Pardoning Practices During the Clinton Administration
    Early in President Clinton's first term there were signs that he 
might depart from the consistent practice of his predecessors of 
relying on the Attorney General's advice in clemency matters. For 
example, the White House undertook to respond itself to inquiries about 
pardon matters, and many of its written responses included a phrase 
suggesting that the President considered the Justice Department only 
one of many potential sources of advice. Also, in contrast to past 
administrations, the Clinton White House did not act on clemency cases 
in a regular and timely fashion: no grants at all were issued in four 
of President Clinton's first five years in office, and only a relative 
handful of pardons were granted in later years, usually at Christmas. 
The total number of cases decided did not keep pace with the 
unprecedented number of new applications each year, so that the case 
backlog reported by the Pardon Attorney grew steadily larger. When 
President Clinton departed Washington on January 20, he left behind him 
well over 3000 pending clemency cases, all of which are now of course 
the responsibility of the Bush Administration.
    The FALN grants in the summer of 1999 demonstrated President 
Clinton's willingness to have the White House staff play a role in 
pardon matters entirely independent of the Justice Department. The 
Department had recommended against clemency for the FALN defendants in 
December of 1996, while I was still in charge of the pardon program. 
Later, after my departure, the Department apparently provided the 
President some less definitive information about the cases. In the end, 
the President decided to rely upon an investigation undertaken by his 
White House Counsel in making those controversial grants. This 
evidently deprived him not only of a full picture of the law 
enforcement implications of the grants and the likely public reaction 
to them, it also precluded his being able to allow a political 
appointee with Cabinet status to take some responsibility for the 
situation.
    Several months before the end of President Clinton's second term, 
reports began to circulate that there would be a large number of grants 
at the end of his term. This by itself would be unusual, for pardoning 
had in the past taken place regularly and consistently throughout the 
President's term and was not reserved until its end. Even more unusual, 
some pardon applicants and their lawyers were reportedly given to 
understand, by Justice Department officials and others, that the White 
House might be receptive to applications filed there directly, given 
the short time period remaining before the end of the 
administration.\1\ It was said that President Clinton did not want to 
leave office having pardoned less generously than any President in 
history, and only three weeks before leaving office he himself remarked 
publicly on his frustration with the existing system of Justice 
Department review.\2\
---------------------------------------------------------------------------
    \1\ See, e.g., Kurt Eichenwald and Michael Moss, ``Rising Number 
Sought Pardons in Last 2 Years,'' New York Times, January 29, 2001, at 
A1.
    \2\ See President Clinton's remarks on the occasion of the 
appointment of Roger Gregory to the Court of Appeals for the Fourth 
Circuit, December 27, 2000. President Clinton noted that many of those 
to whom he had granted pardon just before Christmas ``were not people 
with money or power or influence. And I wish I could do some more of 
them--I'm going to try. I'm trying to get it out of the system that 
exists, that existed before I got here, and I'm doing the best I can.''
---------------------------------------------------------------------------
    While one might expect some slippage in the ordinary pardon process 
at the end of an administration, it was clear to anyone familiar with 
that process that something unprecedented was about to take place. Even 
with this advance warning, however, I was surprised at how pardon 
decisions were reportedly made in the final hours of his tenure, and 
even more surprised at some of the grants.
              Congressional Oversight of the Pardon Power
    I do not believe that a constitutional amendment is necessary to 
ensure responsible use of the pardon power, or to provide for 
appropriate congressional oversight of its administration. Nor is it 
desirable to restrict the President's discretion if pardon is to 
continue to play the operational role in the justice system that it has 
throughout our history. Future misuse of the power can best be avoided 
if the President commits himself to the serious and regular exercise of 
the power, and to reliance on a system for administering the power that 
inspires public confidence.
    A direct congressional role in granting pardons was rejected by the 
Framers precisely on grounds that this would not be conducive to 
accountability, consistency or efficiency. I leave it to others to 
explain in more detail why the Framers thought that the President alone 
should have the power and duty to bestow public mercy, and why of all 
his powers they chose to make this one entirely independent of the 
other branches. I would simply note that giving Congress a role in 
approving or disapproving pardons is hardly likely to result in more or 
better ones, and will do little to remove the power from the influence 
of politics. Indeed, it is likely to exacerbate the situation.
    At the same time, I believe that it is entirely appropriate for 
Congress to take an interest both in particular pardon grants, and in 
the President's pardoning practices. This is particularly important at 
a time when the justice system is in transition, as ours now evidently 
is with an escalating prison population and serious questions being 
raised about the fairness of the federal sentencing guidelines system. 
It is important for Congress to heed the messages pardons send, for a 
justice system whose fairness depends upon the frequent exercise of the 
pardon power is probably in need of legislative reform. If few pardons 
are being issued, this may also suggest the desirability of 
congressional inquiry, for it may portend (as recently evidenced) 
postponement of the inevitable.
    Moreover, congressional oversight can help the President assess how 
efficiently his power is being administered, and whether it is serving 
appropriate policy goals. For if the recent episode has taught us 
anything, it is that the pardon power is a public trust, in whose fair 
and regular exercise all citizens have an important stake.
    I hope that the instant congressional inquiry will reveal that the 
Justice Department's role in administering the pardon power has been 
instrumental in keeping the power from being misused or otherwise 
brought into disrepute, and that the President would be well-advised to 
mend it, not end it. Many of the concerns raised in connection with the 
final Clinton pardons are directly attributable to the President's 
decision not to seek the advice of his Attorney General in connection 
with making a decision on a number of those grants. More generally, the 
irregularity and infrequency with which President Clinton acted on 
pardon applications throughout his two terms was calculated to invite 
public suspicion about the bona fides of even his most unexceptionable 
grants. The Clinton administration's short-sighted and ill-advised 
decision to abandon the longstanding regular system of Justice 
Department review led directly to the reported free-for-all at the end 
of his term, and at best an appearance of cronyism and impropriety.
    President Clinton's pardoning practices not only resulted in 
embarrassing grants, they also left the process by which the pardon 
power has historically been administered in disrepute. President Bush 
has his work cut out for him in deciding what to do now. If he wishes 
to restore public confidence in the pardoning process, it will not do 
for him simply to retool the existing bureaucracy. His more fundamental 
and important task is to consider what role pardon should play in the 
federal justice system, and then decide how best this can be 
accomplished. Hopefully, the otherwise unfortunate circumstances of the 
final Clinton pardons will offer President Bush an early opportunity to 
do both.
       Reexamination of the Role of Pardon in the Justice System
    The critical first question is what official role (if any) 
forgiveness should play in the federal criminal justice system. 
Historically, the pardon power has been used to override the law to 
achieve a just result in individual cases, and also to symbolize 
official forgiveness. A majority of President Clinton's final grants 
fall into this category under traditional Justice Department criteria. 
Given President Bush's stated interested in rehabilitation and 
redemption, pardon should find a welcome place in his panoply of 
powers.
    Pardon has also been used as a policy tool, to suggest the 
desirability of particular changes in the law. For example, among the 
last-minute beneficiaries of Clinton's pardons were 20 men and women 
convicted of violating the federal drug laws, who walked out of prison 
by executive fiat on the day Clinton left office. Each of the twenty 
had served at least six years of sentences ranging from 10 to 85 years, 
and each had been only peripherally involved in the drug conspiracies 
for which they had been held accountable. Several of those released had 
been teenage couriers for crack gangs, and several had been victims of 
domestic abuse. In some of the cases the sentencing judge and 
prosecutor had recommended in favor of clemency, the only means of mid-
term sentence reduction currently available in the federal justice 
system. These 20 lucky drug offenders were in many respects typical of 
the hundreds of inmates serving long mandatory sentences for whom 
executive clemency holds out the only hope of early release. It would 
be a shame if the message in these 20 grants were lost in the uproar 
over the more controversial and irregular grants.
    As another example of the way pardons deliver a powerful message to 
the justice system, many of the beneficiaries of the January 20 grants 
were seeking restoration of basic legal rights of citizenship that they 
had lost as a consequence of their conviction. Most had long since 
served their sentences and were genuinely remorseful, and had patiently 
waited many years for an official indication that they had paid their 
debt to society. Few had lawyers, and even fewer had influential 
friends. Many had encountered legal obstacles to their rehabilitation 
such as denial of employment and benefits and basic civil rights. There 
is a legitimate question whether presidential action should be 
necessary to give relief from these civil disabilities, or whether 
Congress should not review the laws that so impede an offender's 
reentry into the community.
           Shoring Up the Administration of the Pardon Power
    Assuming the desirability of a role for pardon in the justice 
system, it remains to be decided how the President's pardon power can 
best be administered to ensure its freedom from suspicion and 
manipulation. As previously described, the President has historically 
relied on the advice of his Attorney General in exercising the power, 
which has for the most part kept it free from political interference 
and public suspicion, allowing it to play a constructive operational 
and symbolic role.
    Recently, in the absence of guidance from the President, the pardon 
program has lost its independence and integrity within the Department 
of Justice. Over the past twenty years it has gradually come to reflect 
the unforgiving culture of federal prosecutors, and now serves 
primarily as a conduit for their views. This too seems to have 
contributed to the January 20 debacle, for it appears that the 
President may have been dissatisfied with the general approach to 
clemency cases being taken by his own Justice Department, and in the 
end simply worked around it using his own White House staff.
    In addition, the rising number of federal criminal convictions, the 
severity of the consequences of conviction, and the absence of 
alternative relief mechanisms, have combined to create an overwhelming 
demand for pardon and a crushing workload for the small staff in the 
Justice Department that is responsible for administering the pardon 
program. The unprecedented increase in case filings during President 
Clinton's two terms, coupled with uncertainty about standards for 
making decisions, has evidently made it impossible for the Department 
of Justice to maintain even the semblance of fairness and regularity in 
handling pardon cases. (Whether responsible Justice officials could 
have played a more helpful role in coordinating and facilitating the 
pardon process is one of the yet-unsolved mysteries of Clinton's final 
days.)
    The basic structure and staffing of the Department's pardon program 
has not changed very much in almost a century. If the role of the 
pardon power is to be reassessed, so too should the system by which it 
is administered. If I had just one recommendation to make to President 
Bush, it would be that he direct his Attorney General to resume a 
personal responsibility for providing advice in pardon matters. As a 
corollary, I would suggest that the President appoint someone to assist 
the Attorney General in clemency matters whose courage and compassion 
are unquestioned, whose independence within the Department is assured, 
and who can be held politically accountable.
    If I could make a second recommendation, I would urge the President 
not to make it so hard for people to obtain his mercy. Post-sentence 
pardons should be available to all who are truly remorseful, and who 
have made a genuine effort to pay their debt to society. As to 
commutation cases, some fair and systematic way should be found to 
identify and give relief to individuals serving prison sentences whose 
length is simply disproportionate to the crime.

                             Looking Ahead

    The message to our new President from the final Clinton pardon 
grants should be clear: it is time for a thorough-going rethinking of 
the role of pardon in the federal justice system.
    This will provide an occasion to review current laws and policies 
on the consequences of conviction, to determine what reforms may be 
necessary to lessen the operational need for pardon, and to spell out 
how compassionate conservatism will work in this most logical venue. 
This review should involve members of Congress and the judiciary, for 
their role in the making and interpretation of the law has important 
implications for the exercise of the pardon power. It should also 
involve representatives of the media, who have a central role in 
controlling pardon's exercise.
    The message to Congress should also be clear: Rather than seek to 
restrict and control the President's pardon power, through a 
constitutional amendment or otherwise, Congress should encourage its 
generous exercise as a discretionary complement to the legal system, 
and work to ensure that the laws do not have to depend for their fair 
operation upon a device that by rights should serve only as a ``fail 
safe.''
    I predict that we will look back on Bill Clinton's final pardons as 
his single most important contribution to the federal criminal justice 
system. For thirty years politicians and bureaucrats alike have been 
for more interested in feeding the front end of the justice system 
through enacting more laws, hiring more prosecutors, and building more 
prisons, than in helping people avoid becoming enmeshed in the system 
in the first place, creating opportunities for them to earn their way 
to freedom, or finding ways to encourage their reintegration in to the 
community. My hope is that, with Bill Clinton's pardons in mind, 
President Bush and Congress together will be willing to reorder these 
priorities.

                                

                            Office of The District Attorney
                                            Anniston, Alabama 36201
                                                   February 9, 2001

Honorable Jeff Sessions
United States Senate
495 Russell Senate Building
Washington, DC 20510

    Dear Senator Sessions

    On his last day in office. President Clinton commuted the death 
sentence of David Ronald Chandler who had been convicted in United 
States District Court for the Northern District of Alabama in 1991 for 
murder in the furtherance of a continuing criminal enterprise. The 
Supreme Court of the United States was soon due to consider this case 
further when the commutation was granted. I implored the President not 
to intervene. While Chandler's attorneys and supporters, many in the 
media, have viciously attacked the integrity of those investigators and 
prosecutors who diligently pursued Chandler. the truth is that the 
President commuted a death sentence that was appropriate and fair under 
the circumstances of the case. My understanding is that the former 
Attorney General concurred. at least tacitly, in the President's 
actions. It is disheartening that both of these officials saw fit to 
turn their backs on their line personnel who had done nothing except 
vigorously enforce the law as written.
    The evidence at trial showed that Chandler was the controlling 
partner in a large marijuana, rowing, transporting and trafficking 
operation between 1987 and 1990. He and his partners cultivated and 
harvested thousands of marijuana plants in eastern Alabama and western 
Georgia, and bought and sold large quantities of marijuana for 
distribution. Testimony showed Chandler had attempted to use deadly 
physical force against a Georgia Bureau of Investigation officer upon a 
previous arrest, and that Chandler had said that ``if he got set up 
again, he'd have to kill somebody.''
    Persons with intimate knowledge of Chandler's operation testified 
that Chandler had solicited them to kill an informant and the local 
police chief who had been instrumental in bringing Chandler's 
activities to the knowledge of state and federal law enforcement 
officials. According to these witnesses, Chandler offered money to 
secure these deaths, even providing a weapon for such use Martin 
Shuler, the deceased victim of Chandler's crime, informed local law 
enforcement in March, 1990 that Chandler was having marijuana 
distributed from the home of Shulei s ex-wife, Donna Shuler. A search 
warrant revealed Shuler's allegations true and Ms Shuler was arrested 
for her possession of one kilogram of marijuana. The evidence at trial 
indicated Chandler learned of Martin Shuler's informant activities 
during the legal proceedings concerning Ms Shuler's arrest. Chandler, 
according to one witness, solicited him to kill Shuler and the local 
police chief because of their intruding into his marijuana distribution 
process.
    Charles Ray Jarrell, Chandler's brother-in-law who worked with 
Chandler in the growing and distribution of the marijuana, testified 
Chandler offered him money on several occasions to ``take care'' of 
Martin Shuler. Jarrell further testified that on the day or Shuler's 
death, Chandler told him Shuler was ``going to cause us a lot of 
trouble'' and that Jarrell ``better go on and get rid of him.'' 
Chandler told him he still had the money available to pay Jarrell if he 
would do as lie was asked. Jarrell testified that, using a gun given to 
him by Chandler, he shot Shuler while they visited a local lake, that 
he and Chandler buried the body in a remote mountain area, and hid 
Shuler's car. Jarrell later led authorities to the gravesite. An 
autopsy was performed that revealed Shuler died from a gunshot wound to 
the back of the head.
    Later, in August and September, 1990, Chandler made threats with 
respect to two other individuals who, according to testimony, he 
believed were stealing his marijuana from where it was being grown or 
stored. Neither of those individuals have been seen after early 
September 1990. Their families have never been allowed to bury their 
loved ones, yet Chandler has been able to sway the President of the 
United States that his life should be spared.
    Chandler's attorneys have painted their client as a ``Robin Hood'' 
type character and his prosecutors has suborners of perjury and liars 
themselves. They offer Jarrell's recantation of his trial testimony as 
incontrovertible evidence of Chandler's innocence when, in actuality, 
it is only one brother-in-law doing his best to have another removed 
from a death row cell he helped build After 23 years of prosecuting 
criminals, I know there are no winners or losers in cases such as 
these. Only justice should win. In this case, justice is mysteriously 
absent.

            Sincerely,

                                          Joseph D. Hubbard
                                                  District Attorney

                                

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[GRAPHIC] [TIFF OMITTED] T6344.002

                                

               Statement of John R. Stanish, Hammond, IN

    I am happy to be invited to testify before the Senate Judiciary 
Committee on the matter of presidential pardons.
                          Personal Background
    I have practiced law in Hammond, IN for the past 30 years, except 
for the period from 1977 through 1980 when I served as Pardon Attorney 
in the administration of President Jimmy Carter. During that time I 
served under the two Carter Attorneys General, Griffin Bell and 
Benjamin Civiletti. Since leaving office, I have from time to time 
represented clients in presidential clemency matters.
                    Background on the Pardon Process
    Article two, section two, clause one of the Constitution provides 
in part:
``The President . . .shall have the power to grant reprieves and 
        pardons for offenses against the United States. . .''
    This language has uniformly been interpreted to grant the President 
unlimited power in matters of clemency. The reason for this 
interpretation is that the Constitution grants very few specific powers 
to the President. Although, we would all agree that the presidency has 
awesome and broad powers, almost all of these powers come from implied 
and not specific grants of power in the Constitution. The few examples 
of specific grants of power, including the clemency power, are 
therefore generally interpreted to be very broad in nature. I emphasize 
this because the President's clemency powers cannot be restricted by 
anyone, including Congress.
    Historically, Presidents have looked to the Attorney General for 
advice concerning clemency. This process was formalized when a Pardon 
Clerk and then a Pardon Attorney was provided for in the Department of 
Justice. The Pardon Attorney, on the staff of the Attorney General, 
assists in clemency requests and prepares letters or reports from the 
Attorney General to the President on proposed clemency.
    Under President Carter, the Justice Department was reorganized in 
to two broad operating areas, criminal and non-criminal, and an 
Associate Attorney General position was created as the third ranking 
Justice Department official. Since then, the Associate Attorney General 
oversees either the criminal or non-criminal functions and the second 
highest official, the Deputy Attorney General, oversees the other area. 
The Pardon Attorney reports to the official overseeing the criminal 
area and recommendations for or against clemency are prepared for the 
signature of the Deputy Attorney General or the Associate Attorney 
General, whichever is appropriate. The Attorney General is now out of 
the direct clemency process, although he or she can and does get 
involved at his or her discretion. In the Clinton presidency, the 
Deputy Attorney General supervised the Pardon Attorney.
    I believe that either during the Franklin Roosevelt or Harry Truman 
presidencies, formal rules were adopted jointly by the President and 
the Attorney General concerning clemency. These rules, subject to 
changes from time to time, are still in effect under 26 CFR 1.1 et seq. 
The rules are considered advisory only and create no right in any 
person to clemency nor are they construed so as to create procedural 
rights in pardon applicants as to how clemency is considered. The rules 
do not limit the President in any manner. In other words, any President 
can ignore these rules and consider clemency outside of the process 
contemplated by the rules. This is certainly what appears to have 
happened with the approximately two dozen grants of clemency at the end 
of President Clinton's tenure.

                         Usual Clemency Process

    In the normal course of things, anyone seeking clemency follows the 
procedures established at 26 CFR 1.1 et seq. by applying for clemency 
with the Pardon Attorney. If the request is for commutation of 
sentence, the Pardon Attorney would direct the Bureau of Prisons to 
furnish prison records, which should include the pre-sentence report 
and other details of the offense. If those records and the clemency 
petition appear to have any merit, the views of the current U. S. 
Attorney for the district of conviction, the sentencing judge and the 
Director of Prisons are solicited. If the matter involved drugs, 
weapons, taxes, etc., the views of the head of the DEA, ATF, IRS, etc. 
would also be sought. If after all of these have been reviewed the 
Pardon Attorney continues to believe that clemency should be granted, 
he would prepare a Letter of Advice to the President detailing the 
matter and suggesting the form of commutation to be granted. This 
letter would be signed by the Deputy Attorney General (or the Associate 
Attorney General if that official is overseeing criminal matters) and 
forwarded on to the White House Counsel. If the Pardon Attorney feels 
that clemency should not be granted, he would prepare a Report of 
Denial suggesting that clemency should not be given. This report is 
also prepared for the signature of the Deputy or Associate Attorney 
General and forwarded on to the White House Counsel. During my tenure 
as President Carter's Pardon Attorney, I sought to have authority given 
to the Pardon Attorney to simply issue denial reports without bothering 
higher officials if the case were clearly unmeritorious. This procedure 
may or may not still be in effect today.
    If the request were one for pardon, the application should also be 
filed with the Pardon Attorney, who would make a preliminary decision 
as to whether the case may have merit. If it is determined positively, 
normal procedures require that he secure a copy of the pre-sentence 
report from the sentencing district (because this provides excellent 
background on the case). After that is received and assuming the case 
may still appear to have merit, the Pardon Attorney would direct the 
FBI to conduct a full-field background investigation of the applicant. 
This investigation is handled by the same unit within the FBI that 
conducts background investigations for presidential appointees. The 
investigation is quite thorough. The FBI looks into credit history for 
the possible financial irresponsibility, contacts all present and most 
past employers or business associates, checks into all neighborhoods of 
current and past residence, checks on the possibility of current or 
past other criminal activity, drug or alcohol abuse, attitudes 
regarding racial, sexual or religious bias, interviews character 
references suggested by the pardon applicant, and generally is free to 
delve into anything the bureau feels is appropriate. The character 
references, past and present neighbors, and past and present employers 
and business associates are also asked to furnish names of other 
persons familiar with the pardon applicant. This whole process is 
lengthy and designed to elicit adverse information, if any exists. My 
experience with the FBI background process is that it is very effective 
in ferreting out negative matters if any are present.
    Assuming the FBI background investigation comes back free of any 
adverse matters, sufficient time has passed since the conviction or 
release from imprisonment, and the case otherwise looks meritorious, 
the Pardon Attorney solicits the views of the sentencing judge, the 
current United States Attorney of the district of conviction, and other 
relevant officials such as the head of the DEA, ATF, IRS, etc. After 
all of these officials respond, the Pardon Attorney decides whether the 
pardon should be granted or denied and prepares a Letter of Advice or 
Report of Denial as set out above in the paragraph on commutations. The 
matter goes to the Deputy or Associate Attorney General for signature. 
The White House Counsel receives the communication on behalf of the 
President and reviews it. If the Counsel agrees with the Department's 
recommendation, the Pardon Attorney is so advised. If clemency is to be 
granted, the individual petitioner is included in the next master grant 
of clemency. (A master grant is nothing more than a grouping of 
favorable clemency cases so that the President signs his name once 
rather than many individual times.) If clemency is to be denied, the 
Pardon Attorney notifies the petitioner of the adverse action.
    It should be noted that in almost all cases the recommendation of 
the Pardon Attorney is accepted by the Deputy or Associate Attorney 
General. Also, in almost all cases, the recommendation of the 
Department of Justice is agreed to by the White House Counsel. In a few 
cases these higher officials will disagree with the proposed decision. 
In the Carter administration, if the Justice superior disagreed with 
the Pardon Attorney, he would advise the Pardon Attorney of his reasons 
and invite the Pardon Attorney to rewrite the recommendation to the 
President or argue the matter further until an agreement was reached. 
From my personal experience, I can say that if the Pardon Attorney 
believed strongly in a proposed outcome, he could prevail on his 
superior at the Justice Department. Rarely, would the Pardon Attorney 
be ordered to change his recommendation. I can think of maybe two 
instances, each involving genuine differences of opinion, where I was 
simply told to change the Department's recommendation to the President.
    On the occasions when the White House Counsel disagreed with the 
Letter of Advice or Report of Denial from the Justice Department, I 
never saw an instance where the Department's recommendation was simply 
disregarded. Instead, on those few occasions, the White House Counsel 
set out its views and asked the Department to consider them. Some times 
the Department changed its recommendation after considering the 
Counsel's position and on others, the Department stayed with its 
original recommendation, which became dispositive of the case. I never 
experienced a situation of where the White House Counsel simply 
overruled the recommendation of the Department of Justice.

                      Alternative Clemency Process

    In coming here today, I was asked to discuss the ``alternative 
clemency process,'' meaning one where the request bypassed the Justice 
Department. In my opinion, there is no ``alternative clemency 
process.'' During the Carter presidency, I can think of one instance of 
a clemency request going to the White House rather than the Department 
of Justice. President Carter received a personal letter from the 
President of the Sudan. In that case, President Carter put a ``buck 
slip'' on the letter and forwarded it to the Attorney General for 
proper handling. The matter was passed along to me, reviewed as if it 
were a petition for clemency, and denied. The Pardon Attorney prepared 
a letter for the President's signature to the Sudanese President 
advising of the disposition of the matter.
    On rare occasions, Presidents will grant clemency without a 
petition to the Pardon Attorney. In recent decades, the only other 
instances that come to mind are:
the Clinton clemencies of on or about January 20, 2001;
the senior Bush pardon of the Iran-Contra officials at the end of his 
        presidency;
the Reagan pardon of senior FBI officials in 1981;
several clemency proclamations by Presidents Carter and Ford for 
        military or draft offenses relating to the Vietnam War;
and the Ford pardon of President Nixon.
    Other than the Clinton clemencies, the others could easily be 
argued to be of great personal interest to the President for very 
proper political reasons such as bringing closure to the country after 
the Vietnam War or the Watergate era or believing that it was in the 
best interest of the nation to not see high government officials 
prosecuted.

                           Clinton Clemencies

    The grants of clemency given by President Clinton on or about his 
last day in office included about two dozen cases, which I understand 
were never considered by the Justice Department. For the most part, 
these cases were not of the nature described in the previous paragraph 
and should not be considered to have been given for highly principled, 
legitimate political reasons. (Although, I can see how President 
Clinton could have granted clemency to Susan McDougal on the basis that 
he had strong feelings that the various investigations against him were 
politically motivated and caused great and unfair harm to someone who 
happened to be his associate. Therefore, it could be argued that Ms. 
McDougal should be forgiven so as to put this whole matter behind her 
and the country, particularly in light of the fact that the President 
had concluded his problems with the Independent Counsel.)
    While I can see no good reason for bypassing the Justice Department 
on these cases, the President acted legally and within the power 
granted him in the Constitution. I cannot see how any of the pardons 
can be set aside or otherwise challenged.
    The granting of this group of pardons is highly unusual and 
unprecedented in recent times. I know of no group of pardons granted by 
recent presidents that were similarly granted. I am struck by one 
question and that is `` Why did the White House Counsel's office allow 
these pardons to proceed? '' As I understand the role of the Counsel's 
office it is, among other things, to protect the President from doing 
things that are illegal or embarrassing. Here, the Counsel's office had 
to be aware of the efforts to get these pardons granted. It should have 
advised the President that established procedures would be violated if 
the pardons were granted and place him at great risk of embarrassment 
or mistake. If the Counsel did so advise the President and this advice 
were ignored, then I believe the Counsel may be without fault. If it 
did not, then the President suffered from a complete failure in the 
Counsel's office.
    If you were to look at specific cases of the Rich and Braswell 
pardons, both would have been stopped by the Pardon Attorney if he had 
been aware of them. In the Rich case, I can assure you that the Pardon 
Attorney would have summarily rejected the request on the basis that 
clemency is never considered for a fugitive. The reason should be 
obvious If you consider clemency for a fugitive you undermine the 
authority of law enforcement agencies, prosecutors and the courts. If 
Braswell had been considered by the Pardon Attorney, it would have been 
referred to the FBI, which would have processed Mr. Braswell through 
its system. That would have shown the pending criminal investigation 
and resulted in the case being rejected. I know of no other pardons 
granted to a fugitive or to someone under an active Federal criminal 
investigation.

                     The Future of the Pardon Power

    Unless a Constitutional amendment is adopted, there is little that 
can be done to prevent the President from exercising clemency in any 
manner he sees fit. If I may engage in hyperbole, the President could 
literally sign a document today that would pardon every Federal inmate 
and I cannot see how such an act could be set aside. The question 
becomes whether the nation wants to go through the effort of amending 
the Constitution. If an amendment is the decided route, I would take 
the opportunity to consider how clemency has been handled in the 
various states, none of which vests the same broad power in a governor 
as is vested in the President. The best of the states' procedures could 
be written into the Constitutional amendment.
    I have substantial doubts that Congress can do much by legislation 
to restrain the President's pardon power.
    I want to thank the Committee for inviting me to express my views 
on these matters.

                                            John R. Stanish
                                                    Attorney at Law

                                

  Statement of Hon. Strom Thurmond, a U.S. Senator from the State of 
                             South Carolina

    Mr. Chairman:
    I am pleased that we are holding this hearing today to review 
pardons issued by President Clinton in the closing hours of his 
presidency.
    The pardon that is the most controversial and hardest to understand 
is for Marc Rich. In 1983, Mr. Rich was charged in what at the time was 
the largest tax fraud case in U.S. history. He was indicted for 
violating the Iranian oil embargo and for evading $48 million in taxes. 
He then fled the country and renounced his citizenship. He has lived as 
a fugitive from justice ever since.
    In the case of Mr. Rich there was no need to consider leniency. 
There had not even been a conviction. Instead, he fled the country to 
avoid having to answer the charges. Giving a pardon to a fugitive sets 
a terrible example. Fugitives are already a serious problem in our 
country, and this action will encourage others to evade the law.
    This pardon request did not follow the normal procedures through 
the Justice Department. Moreover, the President did not even consult 
with the prosecutors who brought the charges and fought diligently to 
try to bring Mr. Rich and his associate to justice. No good explanation 
has been given for this pardon, and it is appropriate for the Congress 
to try to find out why it was done.
    As a result of this outrageous action by the President, some have 
called for constitutional amendments to try to prevent this from 
happening again. We should always be very reluctant to amend the 
Constitution, and this area is no exception. I am strongly opposed to 
President Clinton's actions, but I think we should consider this matter 
very carefully before we act to limit the power of future Presidents 
based on President Clinton's conduct. There have been many 
controversial pardons in American history, but the President's very 
broad pardon authority under Article II has never changed.
    The pardon power is an important component of the powers reserved 
to the Executive in the Constitution. When used sparingly, it is an 
appropriate control on the criminal justice system.
    Last year, many of us on the Committee proposed statutory reforms 
for the pardon process, which were directed at the Pardon Attorney's 
recommendations to the President. This was done in response to an 
earlier unwise decision by President Clinton to grant clemency to 
members of a terrorist organization called the F.A.L.N. The final 
pardons by President Clinton should create new interest in statutory 
reforms.
    The pardon power is a high responsibility that should not be 
abused. I hope that future Presidents will show greater respect for 
their constitutional authority.

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