Obama Dredges Up Marc Rich’s Ghost With Holder: Ann Woolner

Commentary by Ann Woolner

Nov. 21 (Bloomberg) -- When it comes to the Justice Department, the president-elect’s promise of change surely means bringing in people dedicated to blind justice and the rule of law.

After an administration that ran the department as an arm of the Republican Party, the last thing the nation needs as attorney general is a yes-man to the White House.

That’s why Barack Obama’s presumptive nominee for attorney general, Eric Holder, needs to answer tough questions.

Here’s one. Say the president wants to pardon one of the Federal Bureau of Investigation’s most-wanted fugitives who fled the country a day ahead of an indictment charging him with the biggest tax fraud ever. The president knows the man’s ex-wife, a hefty contributor to the party and the president’s library, and seems dead set on the pardon.

What would you do?

In Holder’s case, he has to explain what he did. As deputy attorney general during the Clinton years, he gave a “leaning towards favorable” recommendation when Clinton asked him about just such a fugitive, Marc Rich, who Clinton pardoned on his last day as president.

Holder has already admitted mistakes and wished aloud he had handled things differently.

But why did it take the Rich pardon to teach him this? A year earlier, he went along with Clinton’s decision to set free Puerto Rican nationalists tied to a terrorist organization responsible for bombings and killings.

For that, the Senate voted 95-2 to denounce the pardons. The House voted 311-41.

Jurisdiction Over Pardons

And it was Holder who had jurisdiction over the department’s pardons operation, which even a Democrat as partisan as Representative Henry Waxman described as “a chaotic mess” during the closing days of the Clinton administration.

Well-worn ground already, the pardon controversies would be revisited at Holder’s confirmation hearing. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, has pledged to grill Holder on his role in Clinton’s more troubling pardons.

The senators shouldn’t stop there. What about Holder’s views on executive privilege? On accountability?

He clung to Bill Clinton’s invocation of the privilege when Republican-led congressional committees tried to delve into the Justice Department’s role in the Puerto Rican pardons.

Presidential Communications

“The president’s need to maintain the confidential nature of presidential communications and executive branch deliberations outweighs Congress’s need for the information,” Holder told the Senate Judiciary Committee in 1999.

If that sounds familiar, it’s because the Bush White House spent years chanting “executive privilege” whenever a congressional committee poked its nose where the administration didn’t want it.

At least Holder showed up to testify and answered some of the lawmakers’ questions. Former Bush White House counsel Harriet Miers was ordered to simply ignore a congressional subpoena asking her to explain her role in U.S. attorney firings.

So yes, actually showing up at a congressional hearing would represent a change. But how much of one? Holder still refused to discuss his communications with the White House on the Puerto Rican clemency matter.

Raining on Obama’s parade is something most members of Congress would rather avoid. Anything that looks like partisan sniping wouldn’t fit the country’s mood. People want to give Obama what he wants to get the job done.

Obama’s Rout

Those whose continued employment depend on re-election have surely noticed how thoroughly Obama trounced his opponent, how repeatedly voters drummed Republicans out of office.

Besides, there is much to be said for Holder. He has worked as a federal prosecutor, judge and private corporate attorney. A smart, articulate man with a stellar education, he evokes American values long missing at Justice, like following the law.

Consider what he told a friendly audience in June.

When the law says don’t tap Americans’ phones without court approval, the White House shouldn’t do it. When domestic and international law says don’t torture detainees or inflict humiliation, the administration shouldn’t allow it. When the U.S. Supreme Court rules you can’t hold suspected combatants indefinitely without due process, you give them due process.

“We owe the American people a reckoning,” Holder told the American Constitutional Society. “We must steel ourselves to face the world’s dangers in accord with the rule of law.”

Now, that would be a change.

But before he occupies a position to do that, Holder must do better at explaining what he did and why when Clinton was handing out forgiveness like party favors.

Fixing a Case

Was Holder simply explaining the process or was he suggesting how to fix a case when he told an attorney for an unnamed criminal defendant, he should hire a Washington lawyer “who knows the process. He comes to me, and we work it out.”

What’s the significance of Holder recommending former Clinton White House Counsel Jack Quinn for that job? Was Holder at the same time courting Quinn for help in becoming attorney general in a possible Al Gore administration, given Quinn’s close association with Gore?

And did he intend for Quinn to bypass the normal pardon process -- which would have alerted Rich’s prosecutors to the requested pardon -- by advising Quinn to go directly to the White House with the request? A cryptic e-mail Quinn wrote suggests Holder so advised him, though Holder says otherwise.

Change is what is needed. It is what voters want, and no department needs it more than Justice.

If Holder is Obama’s choice, he must be aware that it isn’t just about the habeas corpus rights of suspected terrorists. It’s also about independent judgment.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.