Did Clinton pardons constitute criminal behavior?

Bill Clinton may have used poor judgment when issuing those controversial last-minute pardons, but were his actions - or those of others involved - criminal?

Both Congress and the US attorney in New York are calling witnesses and scouring documents in search of a crime. But it's one thing to expose a bad case of political misjudgment, say legal experts, and quite another to prove bribery or corruption of a public official - especially if it involves a former president and first lady. And it becomes even harder in the case of presidential pardons, which are, by their very nature, largely above the law.

"There is some chance that people participating in the pardons may be in some criminal trouble, but I think there is only a very small chance that the president or Mrs. Clinton will be in criminal trouble," says Paul Rothstein, a law professor at Georgetown University here, who teaches a course on governmental wrongdoing.

Yet this does not seem to be discouraging lawmakers or a determined US attorney in New York, Mary Jo White.

This week, the House Government Reform Committee continued its investigation, hearing from key aides to the former president, and looking for pardon connections in a list of major donors to the Clinton library. "Some people are wondering what it is that we're looking at..., and the fact of the matter is, that there are some potential crimes here," including bribery, said committee member Rep. Steven LaTourette (R) of Ohio earlier this week.

Meanwhile, Ms. White - a Clinton appointee - has impanelled a grand jury to investigate the pardon of financial fugitive Marc Rich, who was wanted by her office for racketeering, wire fraud, income-tax evasion, and illegal oil trading. Denise Rich, who appealed directly to the president on her ex-husband's behalf, donated more than $1 million to Democratic causes and $450,000 to the Clinton library.

While federal prosecutors in New York have so far declined to describe the scope of their probe, it could include 15 of the more than 170 people pardoned by President Clinton in his last few days in office. Among them would be four Hasidic Jews convicted of swindling tens of millions of dollars from the federal government.

The Jewish community in which these men live voted overwhelmingly for Hillary Rodham Clinton, and after the election, the community sought clemency for the four men at a meeting with Mr. Clinton - a meeting Mrs. Clinton also attended.

While a presidential pardon can't be overturned, there could be criminality in the way a pardon was carried out, says Jonathan Turley, a law professor at George Washington University here. "The president has various constitutional powers, but he is not allowed to exercise those powers in a corrupt or illegal manner," he says.

But proving corruption or bribery is a tall order. In the case of bribery, a jury would have to be convinced of an agreed quid pro quo. Clinton, in a lengthy op-ed defending his position, specifically denied this and listed several reasons for his actions - however misguided his critics believe they were.

"You almost never have a confession orally, or that someone heard" a deal being cinched, says Mr. Rothstein. "That's why in these political cases, you very seldom have a conviction for bribery."

Other charges require less specificity - simply a knowledge on the part of the parties involved that payment is being given because of an official act would be illegal, says John Coffee, a specialist in white-collar crime at Columbia Law School in New York.

Bank records, e-mails, and oral testimony could help establish this - but even so, Mr. Coffee sees the case as a long shot in terms of criminal liability.

First, he says, it could be argued that making a payment to the Clinton library is not the same as making a payment to the president himself. And in the case of the Jewish community and Senator Clinton, "that's just normal politics," he says. Elections are all about officials promising to take action if they are put in office. "They're not making gifts of property," he adds.

Meanwhile, legal experts argue that while it may have been unethical for Jack Quinn, former legal counsel in the Clinton White House, to turn around and lobby his ex-boss on behalf of Mr. Rich, or for attorney Hugh Rodham, Mrs. Clinton's brother, to accept $400,000 from two clients granted pardons, there is nothing illegal about a client paying an attorney to plead his case.

The greatest potential for criminal finding, say experts, is with the Riches themselves, especially if it's determined that Mr. Rich funnelled money through his wife to the Democrats. US law prohibits foreign donations to political campaigns, and Rich claims he is not a US citizen.

But even if there is a criminal finding in the Rich case, almost all legal experts agree that no prosecutor would want to go after the Clintons themselves.

"Neither the Democrats nor the Republicans want Bill Clinton to be prosecuted," says Mr. Turley. "No prosecutor wants to end up as the next Ken Starr."

(c) Copyright 2001. The Christian Science Publishing Society