In Clemency Inquiry, ‘Pro’ Proves Elusive

Two months after Bill Clinton departed the nation’s capital, the scandal he left behind has followed him here.

The political controversy surrounding the former president’s eleventh-hour clemencies has all but played out in Washington, where congressional hearings featured a parade of former White House aides who acknowledged that they and even Clinton erred in rushing through the clemency process, swayed by influential friends and relatives.

The central mystery behind Clinton’s 177 last-minute pardons and commutations--whether they were exchanged for money or other favors--now is the subject of a criminal investigation led by Mary Jo White, the U.S. attorney in New York.

But New York-based federal prosecutors and FBI agents are chasing the same slippery target that has eluded congressional investigators: overwhelming proof that crimes were committed. Former prosecutors, legal experts and political observers say that task may prove too daunting even for White’s resourceful team of investigators. Allegations that federal laws may have been broken remain hazy and distant, and evidence is slim.

“It seems pretty clear from what we know so far that there was a quid here and probably even a quo,” said Jan W. Baran, a former counsel for the Republican National Committee. “The problem is, no one seems to have found the pro yet.”

The likelihood that criminal charges will be leveled against the former president, other Clinton administration officials or private individuals is remote, say those familiar with such politically charged investigations.

A more probable end, many suggest, is that White’s probe will proceed quietly for several months, amassing volatile evidence. Charges may be brought against “those lower in the food chain,” one former prosecutor said. But many observers expect that the investigation will end with a simple announcement of closure.

“My prediction is that nothing other than a grand jury investigation will come of this,” said Washington attorney Pam Stuart, a former Clinton Justice Department official who now works as a criminal defense lawyer.

White, a Clinton appointee who already had convened a grand jury to investigate Clinton’s widely criticized pardon of fugitive commodities broker Marc Rich, was authorized by Atty. Gen. John Ashcroft last week to investigate any or all of Clinton’s last-minute clemencies for evidence of criminal wrongdoing.

She is focusing on three areas so far--the Rich pardon; the alleged involvement of the former president’s brother, Roger Clinton, in pardon-for-payment solicitations in New York and Arkansas; and commutations won by four men from the Hasidic Jewish community of New Square, N.Y.

Last week, White’s grand jury reportedly interviewed several of Rich’s lawyers at the federal courthouse in lower Manhattan, In addition, Denise Rich, the fugitive’s ex-wife and a major contributor to Democratic campaigns and causes, is said to have begun cooperating with investigators--although no formal agreement has been reached.

Prosecutors, like congressional investigators, want to determine whether there was any connection between Denise Rich’s political contributions and the decision to grant pardons to Marc Rich--who has lived overseas for 17 years to avoid facing a 65-count federal indictment on charges of fraud and other crimes--and his business partner, Pincus Green.

Denise Rich gave more than $1 million to Democratic Party committees during Clinton’s presidency, as well as $450,000 to his presidential library and $109,000 to the U.S. Senate campaign of Hillary Rodham Clinton.

But the need to find overwhelming proof of bribery, conspiracy or even fraud in the matter may be too onerous for investigators to overcome, say many former prosecutors.

Legal experts said prosecutors would have to show that at least some of Denise Rich’s donation to the Clinton library fund actually came from her ex-husband. Under federal law, political causes cannot accept money from abroad.

Investigators also would have to find a solid indication of a direct promise from Clinton to Marc or Denise Rich that his pardon was being delivered in direct return for the contributions.

But Denise Rich’s library donation portrays her only as a “serial contributor,” said Lawrence Barcella, a lawyer who served 16 years as a prosecutor in the U.S. attorney’s office in Washington. “That by itself is not a quid pro quo.”

Even if she is “turned” by prosecutors, providing testimony that Clinton acknowledged he was being paid for a pardon, that still might not be enough to mount a case, Barcella warned.

Investigators need to find some tangible proof--a letter, an e-mail, a phone call, a tape recording--showing that clemencies were sold.

“You have to show that there was an acceptance of money or something of value in return for performing an official act,” said Stuart, the former Justice Department official. “It’s extremely difficult to find somebody who’s going to be a witness to that.”

Federal investigators also began seeking evidence last week on allegations that Roger Clinton solicited payment from individuals seeking clemencies from his brother. FBI agents questioned members of a New York family who allege that they paid more than $200,000 to an Arkansas firm in 1998 on the promise that Roger Clinton could deliver a presidential clemency.

Edward W. Hayes, a lawyer for brothers Guy and Garland Lincecum, said family members told agents in more detail of their charges that Roger Clinton was involved in their attempts to free Garland Lincecum, 66, from a federal prison in El Reno, Okla. Garland Lincecum was convicted in 1998 of defrauding a group of Southern California investors.

In an interview Friday in his New York office, Hayes said an Arkansas intermediary--whose name he would not divulge because of the ongoing investigation--told the family that Roger Clinton and an Arkansas company called C.L.M. could help deliver a clemency. Hayes said the Lincecums and their mother, Alberta, all met with representatives of the C.L.M. group several times in 1998.

Roger Clinton, Hayes said, was not present at the meetings.

“They were definitely shopping pardons,” Hayes said of C.L.M. representatives. Dickie Morton, a friend of Roger Clinton and a registered agent for the now-defunct firm, has not answered numerous phone calls.

Hayes added that although the Lincecums paid C.L.M. with at least two $100,000 checks “and probably more” in 1998, they were told as late as this January that a prison commutation was still in the offing. Garland Lincecum was not freed.

Although the Lincecums’ account raises numerous questions, their case--as well as other clemency actions being probed by White’s office--is full of legal land mines that could hobble authorities as they attempt to construct criminal charges.

According to Hayes, federal authorities could mount a strong fraud case against Roger Clinton if he received money for a promised clemency but did no work to secure it.

But if Clinton actually lobbied his brother, prosecutors would be left with--at most--a weak bribery or conspiracy case, Hayes said. Because a clemency is an unfettered presidential prerogative, to prove a crime, investigators would need a wealth of proof that everyone involved knew the clemency was being delivered for money alone.

“If [Roger Clinton] did as little as make a phone call to his brother, that could be enough to say you don’t have a case,” Hayes said.

Prosecutors would also need to establish a clear link between promised results and the prison commutations that Clinton granted to the four men from New Square, N.Y, who were convicted of bilking the government of $40 million.

A preelection meeting between Hillary Rodham Clinton and Grand Rabbe David Twersky, and a postelection meeting at the White House--which also included the president--to discuss the clemency requests, have raised questions of whether the commutations were granted in return for a promise of votes for her Senate campaign. Town residents voted for Hillary Clinton, 1,400 to 12.

Some legal experts are skeptical about whether promised votes would have the same legal value as a monetary bribe. And without strong evidence of a scheme in the making, they said, a criminal case would likely founder.

Meanwhile, in Washington, Rep. Dan Burton (R-Ind.) remains intent on pushing his political inquiry into the Clinton clemencies despite signals from House Speaker J. Dennis Hastert (R-Ill.) to lay low--at least while President Bush pursues his tax cut program in Congress.

But even after raising intriguing questions about the cases of Rich and convicted Los Angeles drug dealer Carlos Vignali, whose prison sentence was commuted by Clinton, investigators for the House Government Reform Committee have yet to show “anything close to a crime,” said Julian Epstein, Democratic staff director on the House Judiciary Committee.

In a letter he sent to Burton on Thursday, the reform committee’s ranking Democrat, Henry A. Waxman of Los Angeles, protested the continuing probe. Waxman warned against Burton’s “escalating” effort to “subpoena records” from Roger Clinton and expand the committee’s focus into other clemencies.

Epstein dismissed Burton and his investigative staff as “their own worst enemies. They’re not going anywhere.” But even former Clinton aide Lanny J. Davis conceded that Burton had run his inquiry more cannily than the disastrous campaign finance probe he oversaw in 1998.

“I choke as I say this, but he’s actually done somewhat of a public service in calling attention to the Marc Rich pardon,” Davis said. But Davis added that Burton’s investigators could lose goodwill “if they push the envelope and look at too many other pardons that don’t deserve scrutiny.”