November 25, 2008, 9:45 a.m.
Opposed to Holder without Apology
The shameful pardons are disqualifying.
By Andrew C. McCarthy
I’ll concede this much to Lanny Davis: Last Friday night, during our Hannity & Colmes debate over President-Elect Barack Obama’s selection of Eric Holder to be the next Attorney General, Davis said (or I should say, screeched) that I’d soon be apologizing, and he’s right. I am sorry that our discussion degenerated into a screaming match. That’s wince-making television that doesn’t edify anyone. So I do apologize to anyone who had to endure that segment.
But Davis’s hysterical suggestion that I apologize to Eric Holder is, well, hysterical. And out of the question.
In my mind, it is Holder who owes an apology — he and his cheerleaders like Lanny Davis, who has never seen a sow’s ear that couldn’t be warped into a silk purse (and isn’t it a thrill to see that “Change” has already put Lanny back on the side of power?); like the leading Democrats who’ve addled us for years with their “grave” concerns about the Justice Department’s lost integrity (it turns out they were kidding); and like President-Elect Obama, who promised voters counterterrorism seriousness but has now given us an AG nominee who promoted a corrupt pardon process that sprung mass-murderers from prison … that is, when he wasn’t otherwise busy securing a pass for a notorious fugitive fraudster and orchestrating a SWAT team’s gunpoint-seizure of a six-year-old child for transport to a communist tyranny.
Let’s be blunt here: The Marc Rich pardon was one of the most disgraceful chapters in the history of the Justice Department. Not the modern history, the entire history. Rich was accused of mega-crimes: millions in fraud, tax-evasion, and trading with the America’s enemies. In 2000, he was a fugitive. He had been one for nearly two decades, during which the government had expended immense resources in a futile attempt to apprehend him.
Mind you, flitting from country to country to avoid prosecution, as Rich was doing, is itself a felony. When Eric Holder aided and abetted Rich’s pardon effort, he was not only grossly violating the Justice Department policy it was his job to uphold; he was dealing with the agents of someone who was actively committing a serious federal crime. That’s why, when prosecutors deal with a fugitive’s representatives, the appropriate question is: “When is he going to turn himself in?” It’s not, as Holder essentially asked, “What can I do to help?”
Holder, then Clinton administration deputy attorney general, steered the fugitive toward a friendly Clinton insider: former White House Counsel Jack Quinn. That enabled the most-wanted fugitive to lobby the President directly — and in violation of an executive order barring lobbying by recently departed White House staffers — without nettlesome interference from the Justice Department’s long-established, procedurally rigorous pardon process. In order to protect the public, that process called for input from the case prosecutors and investigators. As Holder well knew, following it would have demonstrated beyond cavil that pardoning Rich would be an outrage, in violation of every DOJ guideline.
Moreover, Holder extended his helping hand with the crassest of motives: the careerist was hoping the influential Quinn would look favorably on Holder’s quest to become attorney general in a Gore administration. That is, Holder was actively soliciting help from Quinn (Vice President Gore’s former counsel and friend) at the very time he was providing invaluable help to Quinn’s fugitive client — first in unsuccessfully pushing Rich’s preposterous effort to settle the case without jail time with prosecutors in New York, then in overcoming the uniform objections of White House staffers to a Rich pardon.
And the cherry on top: The scenario in which Holder’s sell-out of Justice Department principle took place was scummy in every particular; multi-millionaire Rich’s ex-wife and staunchest supporter, Denise Rich, was making mega-bucks donations to Clinton causes (according to Time, $400,000 to the Clinton Library Fund, $10,000 to the Clinton Legal Defense Fund, and over $1 million to Democrat campaigns during the Clinton era — including $70,000 for the 2000 Senate campaign of Hillary Clinton, now Obama’s pick for secretary of State).
No Republican who’d entangled himself even slightly in such an incident could ever again seek a position requiring Senate confirmation. Democrat Eric Holder was in this one up to his eyeballs.
THE TERRORIST PARDONS
Now consider this: As execrable as the Rich pardon was, it wasn’t even the worst thing that happened that day.
Having already exhausted the country with his excesses, President Clinton’s swan song was one of his worst: a mind-blowing series of pardons. It included not only the Rich escapade but pardons of two Weather Underground terrorists, Susan Rosenberg and Linda Sue Evans. As it happens, I know a great deal about the Rosenberg case. For over a year prior to Clinton’s commutation of her richly deserved 58-year sentence, it was mine.
At the time, I was a federal prosecutor in the Southern District of New York — the office from which Holder was desperate to conceal his stove-piped pardon process since our knowledge of the Rich case would have blown to bits the absurd but unrefuted arguments Quinn was permitted to make directly to President Clinton.
Our office had indicted Rosenberg in the mid-Eighties in connection with the infamous Brinks robbery, in which the Weather Underground, together with the Black Liberation Army, killed two New York State troopers and a security guard. Rosenberg was never tried for the crime because, like Rich, she became a fugitive. Unlike Rich, however, Rosenberg spent her years on the lam plotting to kill more police officers, military personnel and American government officials. In November 1984, she and a cohort were captured in New Jersey. They had an arsenal worthy of a small army and were in the throes of plots to bomb more government buildings and slaughter more innocent people.
Rosenberg turned her New Jersey terrorism trial into a circus, posturing as a political prisoner. At her sentencing, she urged her supporters to continue their war against the United States. (“When we were first captured we said, we’re caught, we’re not defeated, long live the armed struggle. We’d like to take this moment to rededicate ourselves to our revolutionary principles, to our commitment to continue to fight for the defeat of U.S. imperialism.”) She expressed remorse about only one thing: she hadn’t had the courage to shoot it out with the police who’d apprehended her.
Her brazen barbarism moved a highly respected federal judge not only to impose the 58-year sentence but to recommend against parole (within the limits of then-existing law, under which convicts “maxed out” after two thirds of their jail terms). Southern District U.S. Attorney Rudy Giuliani then dismissed the Brinks charges: not because Rosenberg was innocent but because there had already been a grueling trial that Rosenberg didn’t deign to attend while she was out plotting murder and mayhem. There was no need for the pandemonium a second Rosenberg trial promised: the New Jersey sentence should have kept her on ice for at least 20 and, more likely, well over 30 years.
I got involved in the case because her clever lawyers — from high-octane Williams & Connolly, the same firm which had represented President Clinton in the impeachment process — tried to convince a judge to order the U.S. Parole Commission not to consider her participation in the Brinks atrocity. Their hope was that this would open the way for the commission to grant their terrorist client an early release. Ultimately, after a long, often heated litigation, they lost. (It has long been the law that sentencing courts and the Parole Commission may take into account any conduct, even if the defendant has been acquitted — which Rosenberg, of course, had not been.)
I finally persuaded the judge to rule against Rosenberg. Unbelievably, President Clinton then pardoned the terrorist — or, to be more precise, Clinton commuted the sentence to time-served, resulting in Rosenberg’s immediate release. The commutation was announced along with the Rich pardon. So was Clinton’s equally astounding decision to commute the 40-year terrorism sentence of Rosenberg’s co-conspirator, Linda Sue Evans. At the time of her arrest, Evans, who had harbored a fugitive fellow Weatherman terrorist from the Brinks murders and used a fake ID to buy a gun for Rosenberg, possessed hundreds of pounds of explosives with which she and her comrades were plotting to bomb the U.S. Capitol and various military installations. (Interestingly, Evans and Rosenberg were confederates of President-elect Obama’s friends, the former terrorists Bill Ayers and Bernardine Dohrn. Dohrn, in fact, did a short stint in jail for contempt of court when she defied a grand jury subpoena compelling testimony about the Brinks case.)
As you might imagine, I was stunned (as were others in my office) when the Rosenberg pardon was announced on January 20, 2001. I had publicly filed, among other things, a 60-page brief in the district court laying out the history of the Rosenberg case, refuting her frivolous arguments against the Parole Commission’s consideration of the Brinks evidence, and marshaling innumerable reasons why her sentence shouldn’t be reduced by a single minute.
To be sure, Clinton administration deliberations over the Rosenberg commutation were not as secretive as those involving Rich. While Quinn and Holder worked completely in stealth, Rosenberg’s lawyers tried a two-pronged approach: a short public relations campaign (timed for the end of Clinton’s term to make it difficult to coordinate an effective response) combined with exploitation of the Clinton White House’s bizarre pardon vetting operation — the very one that Holder, the deputy attorney general, had encouraged in order to cut the Justice Department, and particularly the Southern District, out of Clinton’s deliberations.
So in October 2000 a story broke in the New York press that Rosenberg would seek clemency from Clinton. Then, in mid-December, 60 Minutes ran a sympathetic profile, rehashing her attorneys’ bogus claims. Our office was tipped off enough to register opposition to a commutation through the normal Justice Department channels. We assumed that this information, especially in a time of terrorist assault against our nation (on which more momentarily), ensured that no commutation would be granted. But unbeknownst to us (though, of course, not to Holder), the game wasn’t being played by the regular rules. Rosenberg, it turned out, had her own Jack Quinn-like intercessor: Rep. Jerrold Nadler, the New York Democrat who pressed her case directly on the president.
THE DAG’s ROLE IN PARDONS
The Constitution vests the power to pardon, like the power to enforce the federal law, entirely in the chief executive. The president, however, does not prosecute cases — and neither, for that matter, does Main Justice, the DOJ headquarters in Washington which Deputy Attorney General (DAG) Holder ran from 1997 through Clinton’s farewell pardon-party on January 19-20, 2001. While the Attorney General is the cabinet member who principally guides Department policy, it is the DAG who controls day-to-day operations and deals most directly with the country’s 93 district U.S. attorneys. (And it is worth noting that toward the end of Clinton’s second term, AG Janet Reno’s then failing health rested more responsibility than usual on the DAG.)
Among the DAG’s formal duties is direct supervision of Justice’s formal pardon process. Roger Adams, Justice’s pardon attorney at the time of the Clinton pardons debacle, reported to Holder. One of the primary objectives of the formal pardon process is to ensure that the DAG and, ultimately, the president are armed with input from the prosecutors and investigators who best know the individual cases. That way, the arguments of lawyers for the petitioners (who naturally know the case better than the DAG, the pardon attorney, and the White House counsel) can be effectively rebutted.
On every pardon or commutation application of which the Justice Department becomes aware, a recommendation is formally made to the president by the DAG. Usually, the DAG follows the recommendation of the DOJ pardon attorney; if the DAG disagrees with the pardon attorney, he directs that the Department’s formal recommendation be amended to reflect his views. In either event, the process is supposed to be open and transparent, such that each application can be subjected to DOJ’s rigorous guidelines,
The president’s pardon power is unreviewable: Clinton could pardon whoever he wanted to pardon, for any reason, no matter how corrupt or arbitrary. He was not required to follow the pardon process. But he should have. It was Eric Holder’s job to try to get him to follow it, and, at the very least, to make certain that Clinton knew the important facts of the pardon cases and how damaging it would be to a country besieged by al-Qaeda to be giving convicted terrorists get-out-of-jail-free cards. Instead, Holder helped Clinton end-run the process.
It takes courage to stand up to a president who is doing something wrong. Holder exhibited cowardice. Apologists like Lanny Davis — who mind-blowingly portrays his friend Holder as the most qualified AG candidate this country has to offer — now say Holder had nothing to do with the terrorist pardons. That is simply preposterous. The terrorists’ petitions, unlike the Rich petition, were formally filed with the Justice Department. Holder was the official who ultimately had to make a recommendation to Clinton. For whatever reason, the House Committee which thoroughly investigated some of Clinton’s more despicable eleventh-hour pardons did not study the Rosenberg and Evans cases. They don’t appear ever to have been scrutinized separately by Congress. But Lanny Davis notwithstanding, the press has reported that Holder signed off on them.
THE FALN PARDONS
More importantly, Holder, as the nation’s second-ranking law-enforcement official, fostered not only the rogue operation but the climate which made terrorist pardons possible. That brings us back to the preceding year, 1999. That was when Clinton, with Holder’s support, pardoned (in this instance, again, commuted the sentences of) 16 terrorists from the FALN.
The pardons violated the most basic Justice Department guidelines. This savage Puerto Rican separatist group had carried out over 130 bombings against American targets, murdering six people and wounding numerous others. As one operative brayed to her sentencing judge, “You say we have no remorse. You’re right.… Your jails and your long sentences will not frighten us.” FALN terrorists were not simply devoid of regret, they had not even sought clemency — the rudimentary demonstration of contrition that DOJ regulations require before clemency may even be considered.
Yet, DAG Holder processed an application on their behalf anyway, and the victims of their atrocities — such as Joseph Connor, whose father was eating lunch in Fraunces Tavern when he was killed by an FALN explosive — were ignored. The FBI and the involved prosecutors were vigorously opposed. FBI Director Louis Freeh explained that clemency “would likely return committed, experienced, sophisticated and hardened terrorists to the clandestine movement[,]” and emphasized that “the FBI was unequivocally opposed to the release of these terrorists under any circumstances and had so advised the DOJ” in writing. But Holder’s support gave Clinton the illusion of Justice Department support he needed, and the commutations were granted. And when pressed by Congress to explain himself, Holder stonewalled, claiming executive privilege (you know, the maneuver today’s Democrats want Karl Rove in handcuffs over).
Memo to the high horse crowd (Sen. Pat Leahy, Chuck Schumer, Russ Feingold, et al.) who’ve lectured us for three years about the evils of politicizing the Justice Department: The FALN pardons were nakedly political. As former Clinton adviser Dick Morris has observed, they were transparently done to help Hillary Clinton, then campaigning to become a U.S. senator, with New York’s heavy Puerto Rican vote. There is no other explanation for them that passes the laugh-test.
THE MESSAGE FROM HOLDER’S DOJ
Finally, let’s talk about what all these pardons say, what signal they sent to the world. Rich, of course, told Americans that if you forked up enough dough, you could buy your way out of crimes for which the less well-heeled go to jail for a decade or two. But that was nothing compared to what pardoning 18 terrorists told our enemies.
In August 1998, al-Qaeda killed over 200 innocent people by bombing the United States embassies in Kenya and Tanzania. The U.S. attorney’s office for the Southern District of New York responded with a comprehensive indictment that sought the apprehension and execution of al-Qaeda’s leaders and operatives — conveying, to the extent it was in our office’s power to do so, the message that there would be no quarter for those who committed and abetted mass-homicide plots designed to extort the United States into policy accommodations.
As that message was ringing, President Clinton and Main Justice under Holder stepped on it with the 16 FALN pardons. Their message was quite different: Terrorists take heart — we’ll play ball with you, no matter how unrepentant you may be, if there’s enough political pay-off to be had.
Not long after those pardons, al-Qaeda bombed the destroyer, the U.S.S. Cole, murdering 17 members of the United States navy. The Clinton administration’s response was to do absolutely nothing. But three months later, as four of the embassy bombers began standing trial, as Americans continued to reel over the Cole bombing and the dawning realization that terrorists were waging war on the United States … Bill Clinton pardoned two terrorists who had waged war against the United States. And he did it using a private-emissary detour around Justice Department protocols that Eric Holder knew about and, far from objecting to, supported.
So, no, I won’t be apologizing to Eric Holder. I’ll be hoping the Senate asks him some long overdue questions. And I’ll be wondering why, with abundant legal talent at his beck and call, President-Elect Obama couldn’t do better.
— National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).