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The Report on the Clinton Pardons That Called Eric Holder's Conduct "Unconscionable":
In its NRO editorial on Eric Holder, the NRO editors pointed out the congressional report that had described his conduct in the Marc Rich pardon as "unconscionable." I haven't seen the report linked to online, but you can find the report here: Justice Undone: Clememcy Decisions in the Clinton White House (2002), by the House Committee on Government Reform chaired by Dan Burton. (Search for "unconscionable" to get to the key section.)

  The report offers a combination of factual reporting and speculation, and it contends that Holder's action in the Marc Rich pardon was "unconscionable" mostly because it bypassed the career attorneys who clearly opposed the pardon:
  One of Holder's primary duties in the pardon process was to make sure that the views of the Justice Department were adequately represented in the pardon process. In addition, as a Justice Department employee, he was bound by federal regulations that required the Justice Department to review pardon petitions before they were presented to the White House. Finally, as a simple matter of prudence, Holder should have ensured that he knew something about the pardon before he took action that substantially assisted the chances that the pardon would be issued. By helping Quinn circumvent the Justice Department, Holder ensured that his own prosecutors would not be able to express their opinion about the Rich case. In so doing, Holder disserved his own Department, as well as the statutes he was sworn to uphold.
  I'm not sure what the statutes were that were allegedly violated (I haven't read the full report yet), but I did want to just flag the report for readers who are interested in following the Holder nomination.
Terrivus:
This "report" is no different that anything issued by Waxman or Conyers regarding the Bush Administration -- a political hack job not worth the paper it's printed on.

If this is the best opponents of Holder's nomination can point to, he will sail through whistling a happy tune.
11.19.2008 5:38pm
SSFC (www):
Dan Burton was a leading proponent of the idea that Vince Foster was murdered, and today is a leading proponent of the discredited notion that vaccines cause autism.

You should have linked to the Jenny McCarthy report on Holder, Orin. It would have more photos than the Burton report, it would be sexy, and odds are good that Amanda Peet would issue an even sexier rebuttal.
11.19.2008 5:47pm
Carolina:
I'm not a supporter of either Clinton or Obama, but as a unitary executive guy, I have no problem at all with what Holder did.

I skimmed the report, and the gist of the allegations seems to be that he bypassed some of the career DOJ bureaucracy. Calling such bureaucratic maneuvering "unconscionable" is wild hyperbole. I mean, what word do you use for a murderer if not allowing some GS-12 to comment on a pardon is "unconscionable?"
11.19.2008 6:08pm
ObeliskToucher:
It's going to be interesting to see which Obama appointment (if any) will see the first attempt at a Schumer rule filibuster...
11.19.2008 6:34pm
A.S.:
Something tells me that all the people who think that it was unconscionable for political appointees at the Bush DOJ to bypass career lawyers in reviewing things like the Georgia Voter ID plan or the Texas redistricting plan will now think that it was no big deal for Holder to bypass the career DOJ prosecutors in the Marc Rich pardon...
11.19.2008 6:35pm
MartyA:
What's the dif? Holder's job will be to serve the Lord Obama in all ways, body and soul, no matter the rights or wrongs. He has proven that he is well suited for such a role. He'll pass, easy!
11.19.2008 6:53pm
Joe Bingham (mail):
Wouldn't it have been funnier to call it "unpardonable"?
11.19.2008 6:59pm
Brian K (mail):
it contends that Holder's action in the Marc Rich pardon was "unconscionable" mostly because it bypassed the career attorneys who clearly opposed the pardon

where was dan burton when bush was bypassing career beurocrats in favor of his politics? (e.g. DOJ civil rights division or plan B or at the EPA) for that matter, where was A.S.?
11.19.2008 7:24pm
Sagar:
A.S.
in less than an hour your prediction came true:)

Brian K,

when you criticize someone and then do the same thing with a "but they did the same too" argument, that is not really the "change we can believe in".

btw, I don't have a problem with Holder's appt - Obama won the presidency, so he should get his cabinet (unless there are serious issues with the appointments, and I don't think that is the situation with Holder)
11.19.2008 7:34pm
KeithK (mail):

It's going to be interesting to see which Obama appointment (if any) will see the first attempt at a Schumer rule filibuster...


At some point Obama may well nominate someone who has enough negatives that it's worth fighting tooth and nail to prevent him frmo taking office. From what I can see Holder is not that guy, even if he wouldn't be my choice for AG.

That's not to say that Republicans shouldn't bring up and air any negatives they think Holder has. That's the job of the opposition party. This won't cause the defeat of a reasonable nominee - and shouldn't because elections have consequences. But if done sanely it will tend to limit the likelihood of "unreasonable" nominees.
11.19.2008 7:43pm
Brian K (mail):
"change we can believe in".

please point out where i stated that i voted for obama for this reason.

great job mistating my argument though. what makes you think i think what holder did was right, besides your own hackery, of course? as your and A.S.'s post show, it apparently is ok for republicans to ignore career employees but not ok for democrats...excellent double standard you got there.
11.19.2008 7:46pm
mls (www):
I would like to point out that when Dan Burton was still chairman of the House Government Reform Committee (2001-02), he actually came down rather hard on the Bush Administration on several assertions of executive privilege and withholding information from the Congress, much to the astonishment of his Democratic colleagues and the irritation of the Republican House leadership.
11.19.2008 8:03pm
sdfsdf (mail):
Right before the part of the report that the blog post quotes, the report makes some relevant points: 1. Holder admits that what he did was wrong, and just says he made a mistake in not letting the career attorneys even comment on the pardon petition, 2. It is dubious whether holder really did this by mistake, and 3. At the time, Holder was trying to get support in getting a job with the hoped-for Gore administration from Quinn, Rich's attorney. And of course granting a pardon to a thief like Rich is not the same kind of public-policy decision as whether to support a particular Texas redistricting plan; it's hard for anyone of any political philosophy to defend.

Here's what the report says:


The final question then is whether Holder's failure to
obtain the Rich petition and involve the Justice Department in
the pardon process was the result of incompetence or a
deliberate decision to assist Jack Quinn. At the Committee's
hearing, Holder suggested that it was the result of poor
judgment, initially not recognizing the seriousness of the Rich
case, and then, by the time that he recognized that the pardon
was being considered, being distracted by other matters.\646\


However, it is difficult to believe that Holder's judgment
would be so monumentally poor that he could not understand how
he was being manipulated by Jack Quinn. Rather, the
preponderance of the evidence indicates that Eric Holder was
deliberately assisting Quinn with the Rich petition, and
deliberately cut the rest of the Justice Department out of the
process to help Quinn obtain the pardon for Marc Rich. This
conclusion is supported by the following e-mail, which was sent
by Quinn to Kitty Behan, ...
———————————

Subject: eric

spoke to him last evening. he says go straight to wh.
also says timing is good. we shd get in soon. will elab
when we speak.\647\
————————————

....

Assuming the ``eric'' referenced is Eric Holder, this e-mail
contradicts the heart of Holder's defense. Holder claims that
he was not focused on the Rich pardon until late in the
process... It also suggests that Holder had reason
to know that the request was remarkable, as he suggested to
Quinn that he circumvent the Justice Department....


The final question is why Eric Holder would do such a
thing. As discussed below, Holder had been asking Quinn for his
help in being appointed Attorney General in a Gore
Administration....


—————————

\648\ In evaluating Holder's motivations, one should keep in mind
that the only reason Jack Quinn was hired by Marc Rich was because of
Eric Holder's initial recommendation to Gershon Kekst. Holder's
suggestion to Kekst that he hire a lawyer like Quinn, who could come to
him and solve the problem, was a self-fulfilling prophecy.
11.19.2008 8:29pm
jafost (mail) (www):
Hack job? Have you read it, Terrivus?

Michael Kelly did:


There remains, after all of it, a sense of the impossible about Clinton and his actions: He did what? This emotion strikes the reader most forcefully in wading through the Burton committee's remarkable report into the pardons and commutations that Clinton issued in his last hours in office. The pardoning spree perfectly illustrates -- even more than the campaign finance scandals, even more than the Lewinsky scandal -- the exceptional nature and degree of personal corruption that Clinton brought to and spread through the White House.


--Michael Kelly, "Common Clinton Knowledge," March 27, 2002.

Marc Rich was a tax fugitive who renounced his American Citizenship and traded with Iran and Libya. Helping him escape justice is certainly unconscionable.

At least the other people who helped Rich get his pardon got paid, including the Clintons. Though corrupt, at least those motives are understandable. But, of all the people on the planet who did not receive money from Marc or Denise Rich, Eric Holder did more to help secure the pardon anyone.
11.19.2008 8:35pm
Sammy Finkelman (mail):
Apparently, Dan Burton decided to believe March Rich's lawyers rather than Eric Holder. To believe this has any effect on the pardon, you'd have to believe that Bill Clinton wasn't secretly arranging the whole thing creating:

1) A paper "sort of proper procedure" record

2) A phony legitimate governmental reason record (being asked to do so by Israel - March Rich developed some relationships in Israel and then his lawyers exploited them)

3) A red herring which would connect the wrong dots so that an investigation would lead nowhere (Denise Rich and the Clinton library - Denise Rich actually had to be strongly urged by March Rich's lawyers to sign on - on the grounds that she was the mother of his children (and the clemency effort would look bad and could be destroyed if she wasn't part of it)

Eric Holder's "recommendation" was another red herring. It was just a threadbare Clinton alibi. The only question would be did Holder intentionally create an alibi or not?

Most likely Eric Holder said it would not be proper for him to say something but it looked like maybe his lawyer friend had made a good case. This was apparently played as some kind of Justice Department OK. As Eric Holder said on his Congressional testimony before the Senate I think, it was quite accurate to say they "ran it" by him.
11.19.2008 9:14pm
Ugh (mail):
Orin - your link goes only to a portion of the report, notably omitting the "minority and additional views" portion (and I don't see a link to the other parts of the report in your link).
11.19.2008 9:18pm
Oren:

I would like to point out that when Dan Burton was still chairman of the House Government Reform Committee (2001-02), he actually came down rather hard on the Bush Administration on several assertions of executive privilege and withholding information from the Congress, much to the astonishment of his Democratic colleagues and the irritation of the Republican House leadership.

Yeah, that was a short-lived episode of hope from the GOP House that came to sorely disappoint me.

At any rate, this is all absurd. Clinton could pardon Rich at any time, for any reason, with or without anyone at DOJ knowing anything about it. Anything else that happened is window dressing, or worse.
11.19.2008 9:34pm
sdfsdf (mail):
The question is not whether President Clinton had the power to pardon Marc Rich without asking the Justice Department— he did— but whether Eric Holder acted (a) improperly or (b) immorally in helping Rich get the pardon and in bypassing the usual process, in which Justice Dept. career employees are allowed to comment (*not* to decide, just to comment).

A previous commentor was correct in wondering what the Minority had to say in the Burton report. The Minority report is
here . It does talk about Holder. Its most potent objection to the Majority report is this:


To reach the conclusion that Mr. Holder ``recommended'' Mr. Quinn to Mr. Kekst, the majority ascribes great significance to a chance social encounter in late 1998 between Mr. Holder and Mr. Kekst, who had never before met. According to Mr. Kekst, he found himself seated next to Mr. Holder at a large corporate event. After Mr. Holder indicated that he ``worked at Main Justice,'' Mr. Kekst recalled asking him general questions about the system of accountability at the Department of Justice and, in particular, to whom U.S. Attorneys were responsible. Mr. Holder apparently responded that they were accountable to him; that was his job. He recalls asking Mr. Holder what a person would do if he believed he was the victim of an overzealous prosecutor. Mr. Kekst said that Mr. Holder suggested hiring a lawyer in Washington, D.C., who knows the process. He recalled that Mr. Holder then spotted Jack Quinn and said words to the effect of, ``There is Jack Quinn, someone like that.'' According to Mr. Kekst, Marc Rich's name never came up in the conversation.\53\
11.19.2008 10:32pm
David Warner:
JaFrost,

"Michael Kelly"

The most grievous casualty of the Iraq War.
11.19.2008 10:35pm
Sammy Finkelman (mail):
I always wondered if the death of Michael Kelly was really an accident of war but so far nothing has come out to indicate anybody planned this.
11.19.2008 10:48pm
Joe Bingham (mail):
I guess no one thought my post was funny. Maybe everyone's just too angry and partisan to see awesome humor when it smacks them in the face. Internet rule #31: the problem is always other people.
11.19.2008 11:15pm
holdfast (mail):
I don't think Kelly's death was anything more than a tragic battlefield traffic accident, but it certainly allowed The Atlantic to become the great gay gossip site and anti-semitic newsletter than employs the likes of Andrew Sullivan.
11.19.2008 11:15pm
Sagar:
Brian K,

I don't care why you voted for Obama, in fact I don't care whether you voted for him or not. That was not the point. Obama ran on "change we can believe in" and I merely pointed out how this is not change.

As to your point about what republicans can do vs what democrats can do, where did you get the idea that i have double standards? did i oppose Holder's nomination?

nice touch framing the issue as "ignoring career employees" - that is not all Holder did. read up about the Rich pardon and what reputation it got Clinton even among his supporters (I am one of those, fyi)
11.19.2008 11:58pm
Mac (mail):
OK. Get this straight. For the next four years, at least, and maybe 8,

1. It is all Bush's fault.
2. If a Republican did or does anything, it is or was evil and immoral even if it wasn't illegal, which is probably was.
3. If Obama wants it, it is OK.
4. Anything any Democrat ever did, if Obama wants him in his administration, is OK. There must be something someone in the Bush administration did that was the same or worse. Bad behavior is always justified by others bad behavior even if it is a real stretch and is not exactly change but is the same old same old.
5. When all else fails, remember #1.
11.20.2008 12:03am
Brian K (mail):
Obama ran on "change we can believe in" and I merely pointed out how this is not change.

and just what is the definition of change that you are using? several people above have already stated several reasons why this is a change from the bush years.


nice touch framing the issue as "ignoring career employees"
if you don't like it, then why are defending A.S. he's the one that originally framed it that way. did you even bother reading what he wrote before attacking me?
11.20.2008 1:17am
jukeboxgrad (mail):
as:

Something tells me that all the people who think that it was unconscionable for political appointees at the Bush DOJ to bypass career lawyers in reviewing things like the Georgia Voter ID plan or the Texas redistricting plan will now think that it was no big deal for Holder to bypass the career DOJ prosecutors in the Marc Rich pardon...


I think with the Texas redistricting, it wasn't just that someone decided "to bypass career lawyers." It was that "Justice Staff Saw Texas Districting As Illegal." So the reason "to bypass career lawyers" was, apparently, to get away with doing something illegal. On the other hand, I don't see anyone claiming that Clinton pardoning Rich was illegal.

With regard to the "Georgia Voter ID plan," career employees were overruled when they criticized the plan. But they were right: a judge later ruled that the plan was unconstitutional. So the reason "to bypass career lawyers" was, apparently, to get away with doing something unconstitutional. On the other hand, I don't see anyone claiming that Clinton pardoning Rich was unconstitutional.

So I think there are problems with your comparisons.
11.20.2008 8:22am
jukeboxgrad (mail):
bingham:

I guess no one thought my post was funny.


I did think it was quite funny. I just didn't speak up.
11.20.2008 8:23am
jukeboxgrad (mail):
mac:

Bad behavior is always justified by others bad behavior


It's pretty ironic to hear you say that, since we've spent the last 8 years hearing people like you defend Bush with various forms of the following statement: 'but Clinton also did it.'
11.20.2008 8:23am
Richard Aubrey (mail):
juke.
Missed again.
The references to the Clinton misdeeds were not a matter of defending Bush misdeeds, but of pointing out that, when Clinton did it, liberals didn't mind. Now they do. Therefore, they are hypocrites.
Not, as I say, defending Bush so much as pointing out what could charitably be considered holes in the libs' faux outrage.
11.20.2008 10:18am
George Smith:
I didn't vote for Obama, I haven't seen much change yet, and I think that most of what he will try to do will be wrong, but Holder is qualified for the job and is not a winning fight to pick. There will be better ones. And I think Sammy Finkleman is a great name.
11.20.2008 11:17am
stuck in no-win:
I agree with Prof. Kerr that Holder should get confirmed, although I take a dim view of Holder's actions re Marc Rich. I generally think that Presidents should get significant deference on executive appointments, even more so than on judicial.

The problem I have with a happy-talk confirmation progress, without at least slapping someone around with tough questions before confirming, is that the Democrats have not seen it that way. Objections to Ashcroft as AG, or to Olson as SG, were pure politics. But they did it.

The big problem, as I see it, is not the desire to play tit-for-tat payback, but that the general public sometimes gets eactly the wrong message from the asymmetry. Rather than see the GOP as more deferential and polite, and the Democrats as the partisan hacks they are, the public sometimes takes away that "gee, Bush appointed all those controversial fellows like Ashcroft, and Obama appointed those guys like Holder whom even Republicans agreed were strong professional picks," etc.

I cannot see any nonpartisan, nonideological argument for saying it was reasonable for Democrats to oppose Ashcroft but not for Republicans to oppose Holder. Yet how do decent Republicans get across the right message and not get sucked into being suckers for the other message?
11.20.2008 12:30pm
Richard Aubrey (mail):
For the libs, good manners and integrity are tools to be used against their enemies. As Alinsky said, make them live up to their own rules.
11.20.2008 3:02pm
David in NY (mail):
I think the question should be whether the Republicans should try to filibuster Holder. I dimly recall Bill Frist's outrage that Democrats were holding up Bush's judicial nominations, his view that the filibuster of judicial nominations was undemocratic, and his threat to do away with such filibusters. Then I recall the dozens of, presumably still undemocratic, filibusters the Republicans engaged in over the last two years. So, what's the party line today? Filibusters undemocratic? Filibusters OK?
11.20.2008 3:45pm
Railroad Gin:
The argument about judicial filibusters was specifically over judicial filibusters not over all presidential appointees. The so-called "nuclear option" would have preserved filibusters for executive officials and legislation for that matter. It had nothing to do with filbustering an AG nominee. So nice try at calling the GOP hypocrites, but it simply doesn't fly.
11.20.2008 4:50pm
jukeboxgrad (mail):
aubrey:

The references to the Clinton misdeeds were not a matter of defending Bush misdeeds, but of pointing out that, when Clinton did it, liberals didn't mind. Now they do. Therefore, they are hypocrites.
Not, as I say, defending Bush so much as pointing out what could charitably be considered holes in the libs' faux outrage.


Possible future references to Bush misdeeds are not a matter of defending potential alleged Obama misdeeds, but of pointing out that, when Bush did it, Bushists didn't mind. Now they do. Therefore, they are hypocrites.
Not, as I say, defending Obama so much as pointing out what could charitably be considered holes in the Bushists' faux outrage.

See how this works? It doesn't occur to you to realize that the door you're hiding behind swings both ways.
11.20.2008 8:42pm
jukeboxgrad (mail):
stuck:

I cannot see any nonpartisan, nonideological argument for saying it was reasonable for Democrats to oppose Ashcroft but not for Republicans to oppose Holder.


I presented such an argument here.
11.20.2008 8:42pm
Richard Aubrey (mail):
juke.
It does occur to me. Problem is, you first have to demonstrate Bush misdeeds. Deep breathing and hand-waving don't substitute for finding a law broken.
11.20.2008 9:59pm
jukeboxgrad (mail):
aubrey:

you first have to demonstrate Bush misdeeds


Where would anyone get the wacky idea that Bush ever committed any "misdeeds?" Better to adopt the perspective famously expressed as follows:

It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can't get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another to a reception that, when not bored, is hostile.
11.20.2008 10:45pm