How the Marc Rich Pardon Could Spawn a New Prosecution

The prosecutors' most logical target is Rich, not Clinton. In politics, it's more dangerous to give than to receive

Here we go again. Another criminal-congressional tag-team crew investigating Bill Clinton. This time, it's to determine not whether he lied under oath about sex—which Clinton essentially admitted at long last on Jan. 19—but whether, on the very next day, he sold a pardon, or two, or a few before he left office.

Before we get to the part where Republican congressional investigators make such a spectacle of themselves as to cast the former President in his favorite role—persecuted prince of puerility—let's assess whether we have here the makings of a criminal case. The short answer is probably not—not against Clinton, at least. He is a master at walking the line between mere sleaze and criminality. And the evidence so far suggests that it was not bribery, but old-fashioned influence-peddling that produced pardons for Marc Rich and other politically connected crooks on Jan. 20.

In issuing the pardons, Clinton was clearly doing favors for Rich attorney (and former White House Counsel) Jack Quinn and then-Prime Minister Ehud Barak of Israel, while showing his contempt for inconvenient facts and the rule of law. Clinton was also apparently venting his spleen against federal prosecutors—Quinn knows how the mere mention of Ken Starr can push that button. It's not so clear that Clinton issued the pardons for the money. Not, at least, in any direct, criminally responsible way: Clinton's habitual favoritism for people who give him money, couches, flatware, and other pleasures is neither criminal nor, in today's Washington, particularly exceptional.

This is not to deny that the pardons of Rich, his business partner Pincus Green, and some others give off an aroma that warrants the criminal investigation started by U.S. Attorney Mary Jo White. She is said to be furious about the pardon of Rich, a fugitive since her New York City office indicted him in 1983 in a multimillion-dollar tax-fraud scheme. Fortuitously for Republicans, White is a holdover Clinton appointee who would be hard to portray as part of the vast right-wing conspiracy; her nominal bosses in the Bush Administration and their congressional allies—who are on fairly thin ice in investigating presidential pardons—would be well advised to get out of her way and zip their lips. And White herself should avoid dragging out her investigation endlessly in the style of Starr—even assuming the usual Clinton evasions, stalling, obfuscation, obstruction, and aversion to coming clean.

The prosecutors' most logical target is Marc Rich, not Bill Clinton. This situation reflects the general rule that in politics, it is more dangerous to give than to receive. The fugitive financier's pardon may do him little good if it turns out that he used his ex-wife, Denise Rich, to funnel the more than $1 million she gave to Democratic political campaigns (including $70,000 for Hillary Rodham Clinton) or the $450,000 she has acknowledged giving to Bill Clinton's presidential library fund. Any such evidence could expose Rich (and perhaps his former wife) to prosecution under at least three different federal laws, even if (as seems likely) there is no proof that he paid any of this money as a bribe—a direct quid pro quo—for the pardon.

The first law bars the funneling of foreign money—including the money of Marc Rich, who renounced his U.S. citizenship to make it easier to avoid extradition—into U.S. political campaigns. That was the law under which Clinton friend and financier James Riady, the Indonesian banking magnate, pleaded guilty last month and agreed to pay a fine of $8.6 million. The second bars any person from making a campaign contribution in the name of another. The third (Title 18, section 201(c)), known as the "illegal gratuity" statute, is more complex and more relevant to whether Clinton himself could be in jeopardy.

The gratuity statute provides a two-year maximum sentence for anyone who "directly or indirectly gives, offers, or promises anything of value to any public official ... for or because of any official act performed or to be performed by such official." It provides the same penalty for an official who accepts anything of value "personally" for or because of an official act.

The good news for Rich and Clinton is that the Supreme Court has held that Congress did not intend to make it a crime for fat cats to make campaign contributions in the hopes of winning official favor, or for officials to do favors for fat-cat contributors, unless there is a direct quid pro quo agreement. Such reciprocal back-scratching, the Court held in 1991, "is unavoidable so long as election campaigns are financed by private contributions or expenditures." The bad news is that the illegal gratuity statute, as well as the laws barring extortion of money or property by federal officials, might be deemed applicable to contributions to the Clinton library fund. And unlike the more severe law against bribery (punishable by up to five years in prison), the gratuity and extortion statutes do not require proof of a quid pro quo. Instead, the judicial precedents suggest, Rich could be prosecuted if he gave money to the library fund "to enhance the likelihood" that Clinton would pardon him.

But even then, the former President would probably be safe unless prosecutors could come up with clear proof that he knew that Marc Rich had financed Denise Rich's gifts to the library fund, as well as a compelling legal argument that the library fund—unlike a campaign contribution—benefits Clinton "personally."

In this regard, prosecutors are presumably inquiring into whether Denise Rich or other suspected Marc Rich agents pledged or gave large sums to the library fund beyond the $450,000; whether other beneficiaries of official acts by Clinton made, pledged, or were asked to make or pledge major gifts to the library fund, which has a hefty $200 million fund-raising target; and perhaps also whether Clinton plans to use the library or the library fund to cover personal living and travel expenses. Whatever investigators may find, the bottom line is that no sane prosecutor would bring a case against a former President unless the evidence of criminal intent was airtight and the stench of corruption was unmistakable.

Prosecutors would also have to overcome Clinton's claims that he pardoned Rich because he thought that the 1983 racketeering indictment of Rich and Green constituted gross prosecutorial overkill and because he was influenced by the lobbying of Barak and other Israeli leaders, who went to bat for Rich because of his vast contributions to philanthropic causes in Israel. As to the legal merits, Clinton is said by one associate to be so obsessed with hatred of Ken Starr as to be especially open to persuasion that multibillionaire Marc Rich is another poor, persecuted victim of marauding federal prosecutors. This Starr-made-him-do-it theory does not begin to justify Clinton's indefensible decision to give Rich a full pardon without consulting anyone—other than Rich's attorney, Quinn—who knew anything about the hundreds of sham transactions and other complex facts underlying the charges against Rich. And the Barak-made-him-do-it theory is weakened by the absence of more convincing evidence that the Rich pardon was a smart foreign policy move. But these theories—combined with the more compelling theory that Clinton did it for Jack Quinn—are plausible enough to create at least a reasonable doubt about whether he did it for the money.

All in all, the former President seems pretty safe. Surely he is smart enough not to knowingly take Marc Rich's money for the library fund and then give the man a pardon.

Or is he? Remember, this is the same Bill Clinton who was smart enough to falsely name three prominent Republican lawyers as supporters of the Rich pardon application in his self-pardoning Feb. 18 op-ed in The New York Times, only to be flatly and foreseeably contradicted within hours by all three. The same Clinton who was smart enough to make off with White House furniture that he was later shamed into returning. The same Clinton who was smart enough to lie his way through a Paula Jones deposition that he could have avoided. The same Clinton who was smart enough to get his presidency all tangled up in thong underwear—and to tell his wife that he had merely been "ministering to a troubled young woman."

With such a man, surprises are always possible. But let's hope that no smoking gun, or DNA-stained dress, comes to light this time. While Clinton's Houdini-like contortions may continue to amuse, a criminal prosecution of a former President would set an unfortunate precedent. And besides, criminal convictions should not be our only way of stigmatizing sleazy conduct. We may be making a little progress in this regard, now that Clinton has lost the Lincoln Bedroom and other trappings of power. Some of his erstwhile champions, who used to see his Monica-cover-up crimes as no disgrace, are discovering that Clinton's conduct can be a disgrace even when he commits no crime.