The Day of Reckoning

Eric Holder is up at bat today in front of the Senate Judiciary Committee. And he has some explaining to do. Perhaps nowhere more so than on his behavior in the infamous Clinton pardons. The Washington Post explains:

Mr. Holder was deputy attorney general — and the top Justice official on pardons — in the late 1990s when Mr. Clinton was considering commutations for members of the FALN, a Puerto Rican nationalist group that was classified by the FBI as a domestic terrorist organization. The group was responsible for some 130 bombings during the 1970s and 1980s; six people were killed and many others injured as a result of those attacks.
The Justice Department in 1996 — before Mr. Holder joined Justice’s headquarters — recommended against pardons or commutations for any FALN members. On Mr. Holder’s watch, the department shifted gears, sending the White House an “options paper” in 1998 that included the possibility of pardons. While not unheard of, it is exceedingly rare for the department to take such an approach. The Los Angeles Times recently published memos from Roger Adams, then a pardon attorney, in which he acknowledged changing the department’s position at Mr. Holder’s request while reiterating the strongest objections from prosecutors and the FBI to leniency for the FALN members. Mr. Clinton ultimately commuted the sentences of 16 members; many had already served almost 20 years in prison but faced decades more on their full sentences. None of those who received reduced sentences had been convicted of murder.

But that’s not a complete accounting of the extent of the Marc Rich pardon. Not by a long shot. Sen. Arlen Specter’s recent floor statement gives a road map of the Rich pardon, and the issues it raises. He reminds us that it was he who chaired the the Senate Judiciary Committee’s 2001 hearing on the pardons of international fugitives Marc Rich and Pincus Green.

During that hearing, the Committee heard testimony from Mr. Holder on his role in those pardons.  I will describe some of the details on those matters shortly.  Based on my role on those investigations, I could have provided President-elect Obama with information on Mr. Holder that he might not otherwise have had and might have found useful.

 . . .
On February 8 and March 1, 2001, the House Committee on Government Reform held two hearings on the pardons of Rich and others made during President Clinton’s final days in office.  On February 14, 2001, I chaired a full Judiciary Committee hearing on the controversial pardons.  At the Judiciary Committee hearing, Roger Adams, DOJ’s Pardon Attorney, testified that “none of the regular procedures … were followed” with regard to the Rich and Green pardons.

Mr. Holder testified that he was not “intimately involved” in the Rich pardon, and that he assumed that the regular procedures were being followed.  Mr. Holder said that, the night before the pardon was granted, White House Counsel Beth Nolan contacted him to ask his position on the pardon request.  Mr. Holder stated that he had reservations about the pardon request since Mr. Rich was still a fugitive and because it was clear that the prosecutors involved would not support the request, but he ultimately told Ms. Nolan that he was “neutral, leaning towards favorable” on the request.  He testified that one factor influencing his decision was the assertion that Israeli Prime Minister Ehud Barak had weighed in strongly in favor of the request; therefore, the granting of the request might have foreign policy benefits.  He made no inquiry, however, as to whether that was true.

Notwithstanding, based on these hearings, serious questions have been raised regarding Mr. Holder’s candor while testifying before Congress. (Jerry Seper, Holder Testimony on Pardon Questioned, The Washington Times, Dec. 18, 2008)  In response to a question from Congressman Burton, Mr. Holder testified that he had “only a passing familiarity with the underlying facts of the Rich case.” (The Controversial Pardon of International Fugitive Marc Rich: Hearing Before the House Comm. on Govt. Reform, 107th Cong. 193 (2001) (statement of Mr. Eric Holder))  Despite this assertion, correspondence with the Justice Department obtained by the House Committee and testimony from other witnesses shows that, 15 months before the pardon, Mr. Holder met privately with Mr. Rich’s attorney and received a presentation about what Mr. Rich’s defense believed were flaws in the government’s case. (Id. at 175-76)  Further, according to Mr. Holder’s own testimony, he tried to facilitate a meeting between the prosecutors in the Southern District of New York and Rich’s attorney, Mr. Jack Quinn, over a year before the pardons were granted. (President Clinton’s Eleventh Hour Pardons: Hearing Before the Senate Comm. on the Judiciary, 107th Cong. 31 (2001))

Allegations have also been raised that Mr. Holder was responsible for the deviation from normal pardon procedures.  Allegedly, Mr. Quinn wrote to and spoke with Mr. Holder several times between November 2000 and the night of January 19, 2001, and primarily relied on him for guidance and information rather than the pardon office.  Mr. Quinn testified that Mr. Holder advised him to go straight to the White House rather than through the pardon office, and Mr. Quinn produced an email from himself to a colleague with the subject line “eric” in which he noted that “he says go straight to wh. also says timing is good. we shd get in soon.” (The Controversial Pardon of International Fugitive Marc Rich: Hearing Before the House Comm. on Govt. Reform, 107th Cong. 640 (2001) (email from Jack Quinn))  Mr. Holder denied that he told Mr. Quinn to go straight to the White House (Id. at 204) and maintained that he thought the regular pardon procedures were being followed; however, he admitted that he never spoke to anyone either in the pardon office or in his own office about whether the Rich pardon petition had been received. (President Clinton’s Eleventh Hour Pardons: Hearing Before the Senate Comm. on the Judiciary, 107th Cong. 30 (2001).

Finally, Mr. Holder testified that he had at least one conversation with Mr. Quinn about a potential Attorney General position in Al Gore’s possible administration while the Rich pardon was pending, and that he was sending Mr. Quinn the resumes of people on his staff and asking for his help in finding them jobs after Clinton left office. (The Controversial Pardon of International Fugitive Marc Rich: Hearing Before the House Comm. on Govt. Reform, 107th Cong. 202 (2001))  Mr. Holder noted, however, that the actions he took with regard to the Rich pardon were done after the election had been decided in favor of President George W. Bush when the Attorney General position was no longer an option.

So looming front and center is the question of Holder’s prior “lack of candor” with the Senate. The standard, as one former Justice Department official reminded me, is not “Did Holder commit perjury?” That is a criminal standard, and he isn’t being prosecuted. He is being considered for the country’s highest law enforcement position, and Senators should be concerned about whether he violated ethical and procedural norms to curry favor with higher ups and then demonstrated a lack of character and candor in failing to come clean with the very institution now assessing him.

Sen. Specter sounds skeptical. We’ll see just how effective Holder is in putting these concerns to rest.