Marc Rich: The Next Step
The pardon investigation splits in two.

February 15, 2001 4:55 p.m.

hat does Mary Jo White want from her investigation of the Marc Rich pardon? The U.S. Attorney for the Southern

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District of New York released a non-statement Thursday morning confirming a probe into "the activities and pardons of Marc Rich and Pincus Green," but shedding no further light on the issue. Still, many observers have interpreted White's action as yet another investigation of Bill Clinton. "A federal prosecutor has cranked up the heat on former President Clinton," the Associated Press reported shortly after White's announcement, "launching a criminal investigation to determine if money played a role in the last-minute pardon of fugitive financier Marc Rich."

While that might at first seem plausible, it's likely that what is really happening is much simpler. Interviews with congressional sources and with former Justice Department officials suggest Mary Jo White is not going after Bill Clinton at all. She's going after Marc Rich.

While Rich cannot be prosecuted for the crimes he was indicted for in 1983, what is publicly known about the pardon raises the possibility that he might have committed new crimes in his campaign to win clemency from Clinton. "What he was pardoned for is off the table — the president's decision is definitive," says former Justice Department official Stuart Gerson. "On the other hand, if there were improper means used to gain the pardon, that is a wholly separate violation."

What that means is Rich might become the target of a bribery probe focusing on whether he used his money and influence in an attempt to purchase a pardon from the Clinton White House. Among the questions that will be asked: Was the money Denise Rich donated to various Democratic and Clinton-related causes her own? If not, what was its source? And what is her relationship with Marc Rich — is it what some have called a "divorce of convenience?"

If the money Denise Rich donated was not her own, prosecutors could pursue the theory that Marc Rich orchestrated an operation in which he used his former wife to launder money to influence the outgoing president's pardon decision. Certainly, Mrs. Rich opened the door to the investigation when she pleaded the Fifth Amendment rather than answer written questions from the House Government Reform Committee. (The very first question the committee asked was, "Were all political contributions made by you between 1992 and the present made with your own money?") Now, New York prosecutors have a second shot at their old target.

While a prosecution of Marc Rich is still just a possibility — no one is saying probability, at least at this point — it would be far more likely than a prosecution of Bill Clinton. To nail the former president, prosecutors would have to have solid proof of a quid pro quo transaction, which usually exists only in cases in which targets of investigations are recorded on tape taking bribes. In addition, it's entirely possible that Clinton, even if he did in effect sell the pardon to Rich, had other motives beyond money. Maybe he thought it would make the Israelis happy. Maybe he was doing a favor for Jack Quinn. Maybe he wanted to irritate Rudolph Giuliani. Remember that Clinton, in March 1997 when he was under criticism in the campaign finance scandal, stated flatly that "I don't believe you can find any evidence of the fact that I had changed government policy solely because of a contribution [emphasis added]." That would not matter from the law's perspective — if any part of Clinton's decision was corrupt, he would be in jeopardy — but it would make the case all the harder to prove.

Whatever happens in New York, White's announcement means the Rich investigation is now formally moving on two tracks — the congressional track and the Justice Department track. And while White's probe concentrates on Rich, Congress will continue to focus on Clinton's actions.

Although House Government Reform Committee chairman Dan Burton has said he will defer to the Justice Department investigation and not immediately seek immunity to force Denise Rich to testify, other aspects of Burton's investigation are moving full speed ahead. The committee's subpoena for Denise Rich's bank records is still in effect. So is the subpoena for the financial records of the Clinton presidential library. And so are plans for more hearings. Late Thursday, Burton announced that he will hold another session on March 1, with a witness list including former presidential adviser Bruce Lindsey, former White House counsel Beth Nolan, and former White House chief of staff John Podesta. Lindsey and Nolan declined Burton's request to testify at the first hearing, saying they were out of town. This time, they'll have to appear.

Finally, there is the question of what kind of cooperation investigators can expect from Bill Clinton. The former president released a statement Wednesday repeating his position that he pardoned Rich because he thought it was "the right thing to do." Clinton said his decision had nothing to do with contributions to the Democratic National Committee or his presidential library or anything else, adding that, "I look forward to cooperating with any appropriate inquiry." It did not take an expert in parsing Clinton's words to focus on his use of "appropriate." In practical terms, it probably means Congress can forget about getting an explanation beyond what the former president has already offered. As for the Justice Department, well, they can talk to his lawyers.