Eric Holder’s role in the pardon of Marc Rich is unlikely to derail his nomination as attorney general, but it will give Senate Republicans a chance to make their Democratic colleagues squirm.
With a confirmation hearing at least a month away, aides to Republican senators on the Senate Judiciary Committee are already stockpiling statements in which Democratic senators criticized Holder and his then-boss, President Bill Clinton, for the 2000 pardon of the billionaire financier.
“I don’t think there is anything [in Holder’s record] that would disqualify him,” said an aide to one GOP senator on the Judiciary Committee. “Certainly there are opportunities to make some of the Democrat senators a little red faced.”
For instance, Sen. Charles Schumer (D-N.Y.), a member of Democratic leadership and one of the most outspoken members of his caucus, said of the Rich pardon in 2001 that “there can be no justification in pardoning a fugitive from justice.”
He added: “Pardoning a fugitive stands our justice system on its head and makes a mockery of it.”
Although Holder played a critical role in the Rich pardon, Schumer now says that Holder is a “classy and historic pick for attorney general,” and nobody with his “experience and integrity” would have any trouble being confirmed.
In a column in The Washington Post on Tuesday, Richard Cohen argued that Holder’s role in the pardon should disqualify him as attorney general because it shows he cannot stand up to power. But Senate Democrats have generally accepted Holder’s admission that he regretted his role in the decision-making process over the pardon. They place the blame on Clinton, not Holder, who was deputy attorney general at the time.
“Eric Holder has said [the pardon] happened in the last few hours — literally, the last few hours, as almost the president-elect and the outgoing president were heading up to Capitol Hill,” Leahy told reporters Monday. “And he said he wished he'd probably taken a stronger position on that.
“It really wouldn't have made any difference what Eric Holder or anybody else said," Leahy said. "But it wasn’t Eric Holder that gave the pardon. It was President Bill Clinton that did.”
Leahy’s GOP counterpart on the panel, Sen. Arlen Specter of Pennsylvania, has said the Rich pardon will be a big issue at the confirmation hearings, which will likely begin in January. But he said he would not block the nomination, and Senate Judiciary Committee ranking member Orrin G. Hatch (R-Utah) has said that he supports Holder despite his role in the Rich pardon.
Sen. Chuck Grassley (R-Iowa), another member of the Judiciary Committee, told reporters last month that he tends to give deference to a presidential Cabinet appointment, particularly for new administrations, and he praised Holder’s credentials. But he had some reservations.
“It's going to be much more controversial than a new administration ought to try to put forth,” he said.
Grassley later added: “But if he's done some things that — that were strictly political, like in the case of Rich, you know, it might question his — the judgment he uses and, in turn, question the judgment of Obama.”
An Obama spokesman touted Holder’s credentials and said “we look forward to working with members of both parties throughout the confirmation process."
As deputy attorney general in 1999, Holder told Clinton that he was “neutral, leaning toward” favorable on the question of Rich’s pardon, helping pave the way for Clinton’s controversial decision just before he left office in 2001. Rich engaged in one of the biggest tax frauds in U.S. history and fled to Switzerland instead of facing federal charges for evading tax laws. His pardon generated enormous controversy from both parties because he was a close associate of the Clintons, having donated large sums of money to the Clinton library. Rich’s ex-wife, Denise, also was a donor to numerous Democratic causes.
In addition to his role in the Rich pardon, Republicans plan to press Holder over his role on other controversial Clinton administration decisions, including one in 1999 in which the president commuted the sentences of 16 members of a Puerto Rican nationalist group that carried out violent protests. They also plan to question him on how he would enforce the Patriot Act; whether terrorism detainees have habeas corpus rights; his views on the Bush administration’s warrantless surveillance program; and how to handle prisoners released from the Guantanamo Bay detention facility.
Generally, senators give deference to a president’s Cabinet nominees, and many aides expect Holder to get no less. But the calculus could change if Holder stumbles in the confirmation hearings, as Michael Mukasey did in 2007 when he refused to say whether waterboarding constituted illegal torture. After furious lobbying by the Bush administration, Mukasey was narrowly approved by the Judiciary Committee and then confirmed as attorney general by a 53-40 party-line vote in the Senate.
Facing a much more robust Democratic majority, any GOP filibuster attempt would almost certainly fail, making an aggressive effort appear desperate.
While Holder is so far the only of Obama's Cabinet-level nominees likely to face a tough confirmation hearing, Republicans know that there’s risk in pushing too hard against him. He is well regarded within the legal establishment, and Republicans senators probably don’t want to be seen teeing off on the sole African-American among Obama’s Cabinet picks.
“I think that we are going to be picking our fights very carefully and selectively and for very good reason,” one top GOP aide said. “And I don’t know if this one qualifies or not. ... I think it’s going to have to rise to a level of offending the conference’s core values, if it doesn’t do that, I don’t know if you’re going to see a fight.”
But the GOP can still try to score political points by pointing to past statements Democrats made on the Rich issue and by questioning whether Holder’s role in the pardon complicates Obama’s vow of keeping politics out of Justice Department decisions.
In a 2001 hearing held by the Senate Judiciary Committee, Sen. Russ Feingold (D-Wis.), a liberal committee member, said that “legitimate questions have been raised about the pardon of Marc Rich ... suspicions about this pardon arise from the fact that Marc Rich’s ex-wife was a large donor to the Democratic Party.”
Feingold’s Wisconsin counterpart, Democratic Sen. Herb Kohl, who also sits on the Judiciary Committee, was quoted in the New York Times in 2001 saying, “There probably isn’t one person across the country today who is familiar with this case who doesn’t think that it’s a question of power, connection, money.”
Leahy himself, in 1999, was critical of Clinton’s commutation of the sentences of members of the Puerto Rican nationalist group, saying that victims of the attacks should have been consulted before clemency was granted.