The Presidential Pardon of Marc Rich, the Belgian-born, naturalized American billionaire financier and fugitive who has renounced his U.S. citizenship and fled to Switzerland to avoid multi-million-dollar tax liability, evoked incredulous responses from many. Said New York’s Mayor Rudy Guiliani, “When I first heard about it, my— my reaction was, quite honestly, no. No. It’s a mistake. It must—they must be confused with somebody else. No president would pardon a fugitive. No president would pardon someone on the FBI’s top number one list of fugitives for a long, long time. No president would ever pardon someone where the charges are still open that he traded with Iran during the hostage crisis. I mean, what president would do that?” The President who did, of course, was William Jefferson Clinton. Rich had been involved in what NBC news called “a complex oil scam exploiting America’s energy crisis in the early 80’s”— from which he made a profit of $100 million. And while 52 Americans were held hostage. Rich’s company allegedly made a killing trading with Iran, in violation of the U.S. embargo. Then he allegedly failed to pay any taxes on the profits.
Rich, one of only six people on the FBI’s Most Wanted list, was still pardoned by President Clinton. As the Wall Street Journal‘s John Fund told Chris Matthews on CNBC’s Hardball, “We have had pardon problems in the past, Chris, but we have never had people like [Democratic party fundraiser] Beth Dozoretz—and I can tell you, [newly designated chairman of the Democratic Party] Terry McAuliffe . . . involved in giving advice to people on pardons in early January. We have never had that before in American history.” What Fund was implying, what internet news sites and some of the tabloids were beginning to speculate, and what two Congressional investigations in both the House and the Senate were looking into, was whether Marc Rich’s ex-wife Denise—a prominent contributor to the Democratic Party—aided and abetted by Dozoretz and McAuliffe, had managed to funnel hundreds of thousands of dollars of Marc Rich’s ill-gotten gains to both the Democratic Party and the Clinton Presidential Library, in exchange for the pardon. Denise Richards quickly pled the Fifth, and by mid-February, Congress and the new attorney general, John Ashcroft, were taking steps to grant her immunity, to gain further information.
If it was true—as virtually every American suspected—that Clinton had promised the pardon in exchange for contributions, it would be the clearest case of Clintonian audacity yet. One strange soul, Sen. Aden Specter—who, during the Clinton impeachment trial, had (making a strange and utterly irrelevant allusion to Scottish law) voted “not proven”—suggested that it might be appropriate to impeach Clinton once again, stripping him of his remaining federal emoluments: his pension. Secret Service protection, and office allowance. The odds of that happening, of course, are slim.
But the Rich fiasco—and Clinton’s contemporaneous pardoning of dozens of others, including his half-brother, his former business partner, and an extraordinary collection of miscellaneous miscreants, many of whom seemed to be directly connected either to him, his family, or powerful members of his political party—did focus new interest on the presidential pardoning power. Could this have been what the Framers had in mind? The Constitution is a bit opaque. It provides merely that the President “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It sets no standards for the granting of pardons, and it imposes no fetters on the absolute discretion of the President. The Federalist, our most reliable guide to the original understanding of the Constitution, devotes only a couple of pages to pardons, but some passages are intriguing. Hamilton, in Federalist 74, writes that “the reflection that the fate of a fellow-creature depended on his sole fiat would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind.” Claiming that it was better to put the power of pardon in the hands of the single executive rather than requiring legislative concurrence (even in eases of treason), Hamilton concluded that “It is not to be doubted that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment than any numerous body whatever.” But Hamilton believed that the Electoral College, indirect election of the president, and other safeguards against direct democracy that the Framers had built into the Constitution would give us a chief executive known for probity and good character. Hamilton was thinking of George Washington, of course, and he never met Bill Clinton. That sound you hear is, undoubtedly, Hamilton spinning in his grave.