Justice Undone: Clemency Decisions in the Trump White House

FPOTUS's pardons were an egregious abuse of power.

Unlike most other powers granted to the President by the Constitution, the power to grant executive clemency is virtually unchecked. Some have argued that because the power to grant clemency is unlimited, Congress has no oversight role over grants of executive clemency. The opposite is true. Because the President can grant clemency to whomever he wants for whatever reasons, it is critically important that certain grants of clemency be subject to Congressional and public scrutiny. If this scrutiny were not applied to grants of clemency, the power could easily be abused.

If that opening paragraph doesn’t sound like my voice, it’s because someone else wrote it: Dan Burton, the chair of the House Committee on Government Reform, and his team. Burton, a Republican, is a former Representative from the 5th District of Indiana. That excerpt is from a lengthy report sent to House Speaker Dennis Hastert on May 14, 2001, entitled “Justice Undone: Clemency Decisions in the Clinton White House,” and concerns President Clinton, on his last day in office, granting a pardon to uber-wealthy financiers and longtime international fugitives Marc Rich and Pincus “Pinky” Green.

The pair were indicted on September 19, 1983, on a whopping 65 counts related to tax evasion, mail fraud, racketeering, defrauding the government, and “trading with the enemy.” This is what the New York Times had to say at the time:

Marc Rich, one of the world’s leading commodity traders, was indicted yesterday by a Federal grand jury on charges that he and a partner had evaded $48 million in income taxes. Prosecutors said it was the biggest tax-fraud indictment in history.

The two men were also accused of buying oil from Iran after trade with that nation had been declared illegal in response to the Nov. 4, 1979, seizure of American hostages.

Mr. Rich, a reclusive multimillionaire, and his partner, Pincus Green, were charged with 51 counts of tax evasion, racketeering and fraud. Through a spokesman, both men declared themselves innocent.

As soon as he got wind of the prosecution, Rich turned tail and fled the country, holing up in Switzerland, a country with a notoriously lax attitude towards foreign tax collection that he knew would not extradite him. He spent 17 years on the lam, evading numerous attempts at arrest—which is easier to manage if you have hundreds of millions of dollars to throw at the problem.

Marc Rich was the prototype for an emerging strain of white-collar criminal—fuckateer, if you will—that Americans four decades later know too well. He was amoral, willing to do business with anyone and everyone with the means to engage his services, no matter how despicable: mobsters, despots, drug traffickers, arms dealers, oligarchs, ayatollahs. He had no national loyalty; born in Belgium but a U.S. citizen, he was all too happy to renounce, at the first whiff of trouble, citizenship of the country that took him in during the war. He played the intelligence services of other countries to curry favor with the nation that issued his passport. And, oh yeah, it was audaciously cheating on his taxes—which is screwing over the rest of us—that got him in trouble in the first place. We see traces of Marc Rich in Paul Manafort, in Roger Stone, in Jeffrey Epstein, in Jared Kushner, in Erik Prince, in Donald Trump.

Here is how Burton and the Committee characterized him:

The pardons of Marc Rich and Pincus Green were the most controversial and most outrageous pardons issued by President Clinton, and likely, by any President. Rich and Green were fugitives from justice, and were two of the largest tax cheats in U.S. history. In addition, they had a long and disgraceful record of trading with America's enemies, helping prop up the Ayatollah Khomeini, Saddam Hussein, Muammar Qaddafi, and the Russian mafia, among others. This track record has led even Marc Rich’s lawyers to call him a “traitor” and observe that he has “spit on the American flag.”

It is beyond any dispute that Marc Rich and Pincus Green did not deserve pardons. Therefore, the inevitable question is why the President granted them. . .

Some of Marc Rich’s vast fortune wound up in the hands of his ex-wife, Denise Rich, and through her, to the Democratic Party, the Clinton Presidential Library Foundation, and the Senate campaign of Hillary Clinton. More found its way to Israel, where prominent government officials from across the political spectrum lobbied Bill Clinton on Rich’s behalf. Still more was used to pay for fancy lawyers with fancier political connections. The optics were terrible. Whatever President Clinton’s actual reasons for granting the pardon, it looked sketchy af. And it reinforced the “crooked Hillary” narrative in 2016—when, a few days before the election, the FBI dumped a tranche of documents related to the Rich pardon.

It’s hard to find anyone in Washington, of either party, who enthusiastically supported the move. Democrats were outspoken in their disgust:

Sen. Chuck Schumer: “There can be no justification in pardoning a fugitive from justice. Pardoning a fugitive stands our justice system on its head and makes a mockery of it.” (The precedent for not pardoning fugitives dates back to the first Adams Administration.)

Rep. Barney Frank: “It was a real betrayal by Bill Clinton of all who had been strongly supportive of him to do something this unjustified. It was contemptuous.”

Rep. Elijah Cummings: “It’s one thing to go to trial. It’s one thing to stay here and face the music. It’s one thing to be found not guilty. It’s a whole other thing, in my opinion, when somebody, because they have the money, can go outside the country and evade the system. I tell you it really concerns me because my constituents have a major problem with that, and I do, too.”

Rep. Henry Waxman: “The Rich pardon is bad precedent. It appears to set a double standard for the wealthy and powerful. And it is an end run around the judicial process.”

Bill Clinton came to regret it, too.

Burton’s Committee, meanwhile, positively excoriated the move:

President Clinton is ultimately responsible for the pardons, and must ultimately provide an explanation of why he granted them. He has, however, failed to provide any satisfactory rationale for his actions. He has failed to answer any serious questions, and instead, has offered only one self-serving, factually inaccurate newspaper column to justify the pardons. President Clinton’s attempted explanations have raised more questions than answers about his motivations for granting two of the most unjustified pardons in U.S. history.

Regardless of the motivations for the Rich and Green pardons, the nation must live with the consequences of them. The pardons have sent two equally destructive messages. First, by granting the pardons, President Clinton undermined the efforts of U.S. law enforcement to apprehend fugitives abroad. By pardoning a man who evaded capture by the U.S. Marshals Service for almost two decades, President Clinton sent the message that indeed, crime can pay, and that it may be worthwhile to remain a fugitive rather than face charges. The pardon also could undermine U.S. efforts to obtain extradition of fugitives from foreign countries. When a man like Rich can go from the Justice Department's most wanted to a free man with a stroke of the pen, it is difficult for the U.S. to credibly demand the extradition of wanted fugitives. Finally, the pardons send the message that President Clinton did believe that different rules applied to wealthy criminals. If he did not have the money to hire [the well-connected attorney] Jack Quinn and his White House access, Marc Rich never would have obtained a pardon. The President abused one of his most important powers, meant to free the unjustly convicted or provide forgiveness to those who have served their time and changed their lives. Instead, he offered it up to wealthy fugitives whose money had already enabled them to permanently escape American justice. Few other abuses could so thoroughly undermine public trust in government.

Ah, the good old days, when the Republican moral compass was still (sort of) operational!

Marc Rich was, without question, a piece of shit human who did not deserve his pardon. But here’s what Marc Rich didn’t do: He didn’t work with the Kremlin to help his preferred candidate win a presidential election. He didn’t share voting data with a Russian intelligence officer who was his business partner. He didn’t send Twitter DMs to Russian hackers. He didn’t cozy up to Chinese fraudsters to fund his attempts to take down the government. He didn’t monetize and politicize a pandemic that got a million Americans killed. He didn’t disseminate known lies about stolen elections. He didn’t champion insurrection. He wasn’t Bill Clinton’s co-conspirator in one of the worst crimes ever perpetrated in this country. He didn’t auction off pardons to the highest bidder.

Bill Clinton pardoning Marc Rich was bad. Donald Trump pardoning Paul Manafort, Roger Stone, Steve Bannon, Mike Flynn, and his other cronies busted by Robert Mueller is orders of magnitude worse. Those pardons were categorically not “meant to free the unjustly convicted or provide forgiveness to those who have served their time and changed their lives.” On the contrary, all of those men were emboldened by their pardons.

Burton’s Committee was right that the Rich pardon “undermined the efforts of U.S. law enforcement to apprehend fugitives abroad.” But by issuing pardons to his co-conspirators, Trump undermined the efforts of U.S. law enforcement to enforce the law—period, full stop. Those pardons were a giant middle finger to the very concept of justice. But where is the Committee on Government Reform 2.0? Why are those egregiously corrupt pardons allowed to stand unchallenged? True, the power of the president to grant pardons is as broad as anything in the founding documents. But that doesn’t mean Congress should not investigate—if only to offer its historical objection, as Burton helpfully provided.

The farther removed we get from Trump’s time in office, the fishier the pardon process looks. Guess who was devoting his attention to the matter in January of 2021 (boldface mine)?

Cheney: “Jared, are you aware of instances where [White House counsel] Pat Cipollone threatened to resign?

Kushner: “I — I kind of — like I said, my interest at that time was on trying to get as many pardons done. And I know that, you know, he was always to — him and the team were always saying, ‘Oh, we’re going to resign. We’re not going to be here if this happens, if that happens.’ So I kind of took it up to just be whining, to be honest with you.”

Then there is the revelation buried in the recent lawsuit filed against the odious Rudy Giuliani by his former employee, Noelle Dunphy. Here are the two relevant paragraphs:

132. [Giuliani] also asked Ms. Dunphy if she knew anyone in need of a pardon, telling her that he was selling pardons for $2 million, which he and President Trump would split. He told Ms. Dunphy that she could refer individuals seeking pardons to him, so long as they did not go through “the normal channels” of the Office of the Pardon Attorney, because correspondence going to that office would be subject to disclosure under the Freedom of Information Act.

and

119. To bolster his claims about the need to keep Ms. Dunphy’s employment “secret,” Giuliani told Ms. Dunphy about other schemes he undertook to reduce the amounts he owed to his ex-wife. For example, Giuliani told Ms. Dunphy that someone owed him $1 million, but Giuliani hinted that instead of having the money paid to him, he had his friend, Robert Stryk, hold it for him. He said, “Robert Stryk just got me a million-dollar payment.” This statement was recorded.

It may be that Giuliani was blasted out of his mind, making shit up to try and impress Dunphy. But if there’s any truth to Rudy’s bluster, selling pardons for $2 mill a pop, while not explicitly prohibited by Article II, is pretty clearly a no-no. Remember, it was a crime akin to selling pardons—attempting to sell off a Senate seat—that took down former Illinois governor Rod Blagojevich. Coincidentally, Blagojevich was 1) a member of Burton’s Committee, and 2) himself the recipient of a Trump pardon.

And here is the ultimate irony: If there’s one person who should have been infuriated at the Marc Rich pardon, and who should therefore fundamentally detest the prospect of the hard work of law enforcement going poof with the stroke of a corrupt president’s pen, it is Rudolph W. Giuliani. After all, he was the federal prosecutor who indicted Rich in 1983.

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Photo credit: Wikipedia/fair use. Marc Rich.