Pardon decision on billionaire fugitive taken in interests of justice, says Clinton

The former US President, Mr Bill Clinton, yesterday went on the offensive in a bid to shake off the opprobrium surrounding his last-minute controversial pardons. In an article for the New York Times, distributed by aides to other papers, the US former president strongly defended his pardons of billionaire fugitive from justice, Mr Marc Rich, and his business partner Mr Pincus Green.

The following is an edited version of Mr Clinton's argument:

First, I want to make some general comments about pardons and commutations of sentences. Article II of the constitution gives the president broad and unreviewable power to grant "reprieves and pardons" for all offences against the United States. The Supreme Court has ruled that the pardon power is granted "to the president . . . and it is granted without limit" (United States v. Klein).

A president may conclude a pardon or commutation is warranted for several reasons: the desire to restore full citizenship rights, including voting, to people who have served their sentences and lived within the law since; a belief that a sentence was excessive or unjust; personal circumstances that warrant compassion; or other unique circumstances.

Some of the uses of the power have been extremely controversial, such as President Washington's pardons of leaders of the Whiskey Rebellion, President Harding's commutation of the sentence of Eugene Debs, President Nixon's commutation of the sentence of James Hoffa, President Ford's pardon of former President Nixon, President Carter's pardon of Vietnam War draft resisters, and President Bush's 1992 pardon of six Iran-contra defendants, including former defence secretary Weinberger, which assured the end of that investigation.

On January 20th, 2001, I granted 140 pardons and issued 36 commutations.

The pardons that have attracted the most criticism have been the pardons of Marc Rich and Pincus Green, who were indicted in 1983 on charges of racketeering and mail and wire fraud, arising out of their oil business.

Ordinarily, I would have denied pardons in this case simply because these men did not return to the United States to face the charges against them. However, I decided to grant the pardons in this unusual case for the following legal and foreign policy reasons:

(1)I understood that the other oil companies that had structured transactions like those on which Mr Rich and Mr Green were indicted were instead sued civilly by the government;

(2) I was informed that, in 1985, in a related case against a trading partner of Mr Rich and Mr Green, the Energy Department, which was responsible for enforcing the governing law, found that the manner in which the Rich/Green companies had accounted for these transactions was proper;

(3) two highly regarded tax experts, Bernard Wolfman of Harvard Law School and Martin Ginsburg of Georgetown University Law Center, reviewed the transactions in question and concluded that the companies "were correct in their US income tax treatment of all the items in question, and that there was no unreported federal income or additional tax liability attributable to any of the challenged transactions";

(4) in order to settle the government's case against them, the two men's companies had paid approximately $200 million in fines, penalties and taxes;

(5) the Justice Department in 1989 rejected the use of racketeering statutes in tax cases like this one;

(6) it was my understanding that Deputy Attorney General Eric Holder's position on the pardon application was "neutral, leaning for";

(7) the case for the pardons was reviewed and advocated not only by my former White House counsel Jack Quinn but also by three distinguished Republican attorneys: Leonard Garment, a former Nixon White House official; William Bradford Reynolds, a former high-ranking official in the Reagan Justice Department; and Lewis Libby, now Vice-President Cheney's chief of staff;

(8) finally, and importantly, many present and former high-ranking Israeli officials of both major political parties and leaders of Jewish communities in America and Europe urged the pardon of Mr Rich because of his contributions and services to Israeli charitable causes, to the Mossad's efforts to rescue and evacuate Jews from hostile countries, and to the peace process through sponsorship of education and health programmes in Gaza and the West Bank.

While I was troubled by the criminalisation of the charges against Mr Rich and Mr Green, I also wanted to assure the government's ability to pursue any Energy Department, civil tax or other charges that might be available and warranted. I knew the men's companies had settled their disputes with the government, but I did not know what personal liability the individuals might still have for Energy Department or other violations.

Therefore, I required them to waive any and all defences, including their statute of limitations defences, to any civil charge the government might bring against them.

I believe my pardon decision was in the best interests of justice. If the two men were wrongly indicted in the first place, justice has been done. On the other hand, if they do personally owe money for Energy Department penalties, unpaid taxes or civil fines, they can now be sued civilly . . .

While I was aware of and took into account the fact that the United States attorney for the Southern District of New York did not support these pardons, in retrospect, the process would have been better served had I sought her views directly. Further, I regret that Mr Holder did not have more time to review the case. However, I believed the essential facts were before me, and I felt the foreign policy considerations and the legal arguments justified moving forward.

The suggestion that I granted the pardons because Mr Rich's former wife, Denise, made political contributions and contributed to the Clinton library foundation is utterly false. There was absolutely no quid pro quo.