When It's Libby, Libby, Libby

at the Hearings, Hearings, Hearings...

TRANSCRIPT OF LIBBY SUPPORTING

CLINTON'S REASONS FOR THE RICH PARDON

March 2, 2000

 

 

WAXMAN: Thank you very much, Mr. Chairman. I want to thank the three witnesses for being here at this late hour.

 

Mr. Libby, I want to ask some questions of you, because you've had a long involvement with Mr. Rich, and probably better than any other witness that we've had before us, would understand the merits of the case that Mr. Rich was offering in his defense.

 

The president of the United States wrote an op-ed in the New York Times. And in that op-ed, he said--or implied that you had advocated for a pardon. And I understand that's wrong. And you've stated you had no involvement in the effort for a pardon. Is that correct?

 

LIBBY: It's correct that it's wrong, sir.

 

WAXMAN: OK. The first--but the president gave other reasons. And the first reason the president gave was, and I quote, "I understood that the other oil companies that had structured transactions like those in which Mr. Rich and Mr. Green were indicted, were instead sued civilly by the government," end quote. Was the president right about this statement?

 

LIBBY: Yes, sir. There were other companies which had similar transactions.  And to the best of my knowledge, those were generally handled civilly.

 

WAXMAN: The second reason the president gave, was--and then I quote again from him--"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."

 

Was the president right about this statement?

 

LIBBY: Yes, sir, I believe he was. And that would be the Arco proposed remedial order, issued by the Department of Energy.

 

WAXMAN: The third reason the president gave was, quote, "two highly regarded tax experts, Bernard Wolfman of Harvard Law School, and Martin Ginsberg of Georgetown University Law Center, reviewed the transactions in question, and concluded that the companies were correct in their U.S. income tax treatment of all of the items in question, and that there was no unreported federal income, or additional tax liability attributable to any of the challenged transactions," end quote. Was the president correct about this?

 

LIBBY: Yes, sir.

 

WAXMAN: The fourth reason the president gave, was, quote, "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, most of which might not even have been warranted under the Wolfman-Ginsberg analysis that the companies had followed the law, and correctly reported their income," end quote. Was the president correct on this statement?

 

LIBBY: Yes sir.

 

WAXMAN: The fifth reason the president gave was, quote, "The Justice Department, in 1989, rejected the use of racketeering statutes in tax cases like this one," end quote. Was the president right about this? 

 

LIBBY: That's my understanding of the Justice Department manual.

 

WAXMAN: Well, Mr. Libby, it appears that you agree with most of the points that the president made. Let me ask you the bottom-line question.

 

President Clinton apparently concluded that Mr. Rich had not committed the crimes he had been accused of. Do you agree with this? Do you think that Mr. Rich is a tax fraud and a criminal, or do you agree with President Clinton's assessments of the merits of the case?

 

LIBBY: I believe, sir, that based on all of the evidence available to defense counsel, the best interpretation of the evidence is that they did not owe any civil--any tax, even as a civil matter. That would be the interpretation given by the two tax professors.

 

WAXMAN: And therefore, that there should not have been a criminal liability.

 

LIBBY: Based on the evidence available to the defense, that would be correct, sir.

 

WAXMAN: Mr. Libby, according to several press accounts, there was discussion in the Bush administration about whether or not the Rich pardon was invalid, because of lack of service. On January 28, 2001, Vice President Cheney said that Justice Department lawyers may be looking at this issue. The next day, President Bush announced that he had decided against acting on lawyers' ideas for revoking the pardon.

 

Are you aware of any discussions in the White House or in the Department of Justice about whether or not the Rich pardon was invalid?

 

LIBBY: No, sir. I recused myself immediately from anything having to do with Mr. Rich, or any matter having to do with Mr. Rich. And I did not participate in any such discussions. I've seen the press stories, as you have, I suppose.

 

WAXMAN: So, you were not involved in them, and you were not aware of them.

 

LIBBY: That's correct, sir.

 

WAXMAN: Mr. Libby, I believe I asked you earlier, when you concluded your representation of Mr. Rich--I think you've testified, that was--tell me again, when did you end your representation of Mr. Rich?

 

LIBBY: My best recollection is that I stopped work sometime in the spring of 2000.

 

WAXMAN: The spring of 2000.

 

LIBBY: Right. And anything active for Mr. Rich, I probably put away some files after that, but that would be the last bit of work for them.

 

WAXMAN: You were asked in November of 2000 to participate in the pardon. What happened at that point?

 

LIBBY: As I testified in my statement, sir, I declined to participate in the pardon.

 

WAXMAN: And when did you have your last conversation with Mr. Rich, before joining the vice president's staff?

 

LIBBY: I am not really sure--1999, 2000, something like that.

 

WAXMAN: Mr. Libby, I'd like to read to you the opening line of a story that The Washington Post is reporting today. "A top aide to Marc Rich alluded more than a year ago to seeking a presidential pardon for the fugitive financier, in correspondence with Rich's attorneys, calling it 'the unconventional approach, which has not been tried, and which I have been proposing all along,' according to one of dozens of documents made public today."

 

The e-mail that The Post quotes was written on February 10, 2000. It's exhibit 135 in the book in front of you.

 

Mr. Libby, were you representing Mr. Rich at the time that e-mail was written, February 2000?

 

LIBBY: It was still during the course of our efforts with the Southern District of New York, sir.

 

WAXMAN: Are you familiar with the unconventional approach that the e-mail refers to? It's exhibit 135.

 

LIBBY: I don't believe that I've ever seen this e-mail before, sir, and I don't know particularly what it's speaking about.

 

WAXMAN: Could you repeat that?

 

LIBBY: I don't believe I've ever seen this e-mail before and I'm not sure what he's speaking about.

 

WAXMAN: Well, it's interesting. Earlier today Mr. Quinn didn't know about that e-mail either and he was given a pretty hard time about it. And I guess the conclusion I think I can reach is that, even if you're a lawyer, you may not be familiar with this particular e-mail and that's your testimony and it was his testimony.

 

LIBBY: Yes, sir.

 

WAXMAN: In November of 2000 you were called into some discussion, either by phone, one--well, let me ask you specifically--you said you were contacted in November of 2000 about the idea of a pardon. Was it a meeting or a telephone conversation?

 

LIBBY: Telephone call, sir.

 

WAXMAN: And that was a telephone conversation between you and who else?

 

LIBBY: Mr. Michael Green (ph), as I mentioned in my opening statement.

 

WAXMAN: And did he discuss the grounds for the pardon or strategy for the pardon?

 

LIBBY: No, sir.

 

WAXMAN: What did he tell you?

 

LIBBY: He told me that--it was a confused conversation because I didn't quite understand what it was talking about at first. And them he said that they were going for a pardon, going to the White House for a pardon, something like that. And I said that I could not participate in that.

 

WAXMAN: Let me take you back to the administration of former President Bush.  Was there any effort at that time to get a pardon for Mr. Rich?

 

LIBBY: Not that I recall, sir.

 

WAXMAN: And if I asked you whether you contacted anybody who was part of the Bush administration to advocate the pardon, your answer would be...

 

LIBBY: Not that I recall.

 

WAXMAN: Mr. Libby, according to press reports, you called Mr. Rich on January 22 of this year. Is that accurate?

 

LIBBY: That's correct, sir. I believe that January 22 is right.

 

WAXMAN: And where you when you called him?

 

LIBBY: At home.

 

WAXMAN: And why did you call him?

 

LIBBY: He had spoken to Mr. Green (ph), who is a good friend of mine, and he had told Mr. Green (ph), he thanked Mr. Green (ph) for all the work Mr. Green (ph) had done on his case over the years and that he also wished to thank me for the work I had done prior to the pardon on his matters over the years, but that he didn't know if it would be OK for him to call me. He did not want to get me in any trouble by calling me.

 

And so I thanked Mr. Green (ph) for telling me that and I said I would call Mr. Rich to say it was OK. And I called Mr. Rich and he thanked me for my work on the case. And I congratulated him on having reached a result that he had sought for a long time.

 

WAXMAN: Have you have any other contact with Mr. Rich since you've joined Vice President Cheney's staff?

 

LIBBY: No.

 

WAXMAN: Have you had any contact with Mr. Rich's attorneys since joining Vice President Cheney's staff?

 

LIBBY: Mr. Green (ph) is a good friend of mine and I've had contact with him.

 

WAXMAN: And what kind of contact have you had with him?

 

LIBBY: Well, he and his wife were good enough to take our kids to the inaugural parade, which, in a rainstorm, was an act of heroism on his part. And we met up with them there and watched the parade together. I showed him my office. You know, social contact.

 

WAXMAN: Social contacts, not about Mr. Rich?

 

LIBBY: Well, he told me that they had received the pardon. He showed me a list from the Internet, things like that. No substance about it.

 

WAXMAN: Since joining Vice President Cheney's staff, have you had any conversations with anybody within the administration about the Marc Rich matter?

 

LIBBY: Yes, sir.

 

WAXMAN: Could you tell us about that?

 

LIBBY: Yes, as soon as this became public, I went to the general counsel for the vice president and told him that I had--about my representation in the past and that I was recusing myself to anything that might come up about it.

 

I subsequently went to the president's general counsel and told him about my participation in it and said I was recusing myself. And I went to my deputy to be sure he would know, in case there was any paper flow that I shouldn't see, to say I was recusing myself from anything having to do with the Marc Rich matter.

 

People in the corridor have expressed regret that I had to come up here and testify. I suppose that qualifies as being about the Marc Rich matter.

 

WAXMAN: Well, I appreciate that. And let me commend you, because I think you took the absolutely correct response, in joining the government, to recuse yourself on this matter.

 

LIBBY: Thank you, sir.

 

WAXMAN: Since joining Vice President Cheney's staff, have you had any conversations with anybody outside the administration about the Marc Rich matter?

 

LIBBY: Yes, I had conversations--the answer is certainly yes. Trying to go through all of that list might take me a bit, but yes.

 

WAXMAN: A recent article--you might give it some thought, and we might come back to it. A recent article in The New Yorker discusses several attorneys that Mr. Rich hired to advocate his case. And according to this article, Leonard Garment, former White House counsel in the Nixon administration, said the following about President Clinton's pardoning of Marc Rich, quote, "I don't know why he did it, but I think Clinton did the right thing," end quote. Mr. Libby, do you believe that Mr. Rich should have been granted a pardon?

 

LIBBY: Sir, I have recused myself, as I mentioned, from anything having to do with the Marc Rich case, and from any communication with anybody on the White House staff, directly or indirectly about whether it was a good idea or a bad idea. Your question puts me in an odd spot, since this is being televised. And people from the White House would hear my view of the pardon, if I were to give it. So I...

 

WAXMAN: Well, it's not--you're not, in any way involving yourself in the case. I'm only asking your personal views of the result of this case. Did you think it was the right result?

 

LIBBY: Sir, I would not give my personal view of the result to anyone on the White House staff, directly, or have a conversation in their presence, about my view of the result. I believe that would push the envelope a little bit on keeping my recusal. If you wish me to answer the question I will, but I think you're taking us into areas where the safest ethical position would be just not to speak on it.

 

WAXMAN: Well, you've already answered questions on the merits of the arguments the president made for granting this pardon. You seem to agree with the president's views on each of those points. Why would you not agree with his conclusions?

 

LIBBY: Those were underlying statements about the merits of the case, not about the wisdom or lack of wisdom of the pardon. If you wish me to answer the question, I will, sir.

 

WAXMAN: Well, the determination of the wisdom of the pardon could be a political evaluation as well as one on the merits. But if you separated a political evaluation of whether such a decision should have been reached by this, or any other president, strictly on the merits, do you think the president reached the right conclusions?

 

LIBBY: Again, sir, you're asking me a portion of the decision about the--about whether it related--how it relates to the pardon, and I would prefer not to answer that. I will answer it if you wish me to.

 

WAXMAN: I'd like you to.

 

LIBBY: I would not know. I know the evidence available to the defense team.  Based on the evidence available to the defense team, as I expressed before, I believe the correct interpretation of the law and the facts would be that there was no tax owed. But I do not know what was in the pardon application. I do not know what information might have been possessed by the government.

 

WAXMAN: You know, you were his lawyer for many years. You have a good understanding of the facts, probably a better understanding of the facts than anybody else that's appeared before us. And certainly many people have commented on the issue. It just seems to me that, knowing the facts as you know them, should this man have been held to answer for these charges, or should those charges in the indictment be resolved by presidential action to dismiss them through a pardon?

 

LIBBY: Well, I know only the facts available to the defense team. Based on the facts available to the defense team, I believe that the case should have been resolved by the southern district of New York, listening to our approaches, looking at the facts in evidence, and we would have been done with it, back at the southern district of New York.

 

WAXMAN: And that would also mean, based on all the information that you know, and only what you know, and you know quite a bit, would that have led you to the conclusion that either the southern district of New York should have resolved this issue, or failing that, that a presidential pardon resolving the issue was justified?

 

LIBBY: I believe the Southern District of New York should have resolved the issue with us back at that point. Whether a presidential pardon is justified would, again, depend on what evidence the Southern District of New York might have and what other factors the president might consider in the course of a pardon. The presidential pardon power if virtually unfettered.

 

KANJORSKI: Will the gentleman yield?

 

Mr. Libby, this is a pretty simple question. You were an attorney for Mr. Rich. You helped brief Mr. Quinn. You know all the facts from that side of the case. You're not expected to know the facts of the Southern District of New York. You feel that they should have stopped the prosecution because it was unwarranted with the facts you knew, but they didn't.

 

Now as a lawyer and prior to your assuming the office of chief of staff for the vice president, are you telling this committee that you don't know whether with everything that you know, and nothing more than you don't know, you have an opinion or not, whether or not the pardon should have been issued?

 

LIBBY: Correct, sir. I...

 

KANJORSKI: What's that opinion?

 

LIBBY: No, no, correct I am telling the committee that I don't know whether it should...

 

KANJORSKI: You have no opinion?

 

LIBBY: I have the opinion based on...

 

KANJORSKI: Do you have an opinion honestly? Let's start there. Do you have an opinion?

 

LIBBY: Do I have an opinion as to whether...

 

KANJORSKI: Do you have an opinion on whether this pardon was justified under the facts as you know them?

 

LIBBY: Sir, I do not have--I have never seen the application. I do have the facts available to...

 

KANJORSKI: I am not asking about the application, Mr. Libby. I am asking about the facts that you know of your own knowledge as a lawyer representing Mr. Rich over those several years. Do you have an opinion as to whether or not those facts warrant the issue of this pardon? That's a simple question.

 

LIBBY: No, sir.

 

KANJORSKI: You have no opinion.

 

LIBBY: I have no opinion because I would not be able to render an opinion without the full record before me. I do not have that record before me.

 

KANJORSKI: So when you worked on this case with Mr. Quinn, you didn't have the facts, you didn't have the information as an attorney?

 

LIBBY: I did not have the facts available to the government and I did not have the other materials...

 

KANJORSKI: Nobody has the facts available to the government. I'm not asking you to render an opinion on what facts the government may have. I'm asking you to render an opinion on what fact you have and had at the time. That's very simply. You ought to have an opinion yes, or you have an opinion, no.

 

LIBBY: I...

 

KANJORSKI: And you're trying to parcel this down and not give us an opinion. And in fairness as a lawyer and a member of the bar and having worked for this client, did you represent a crook that stole money from the United States government, was a fugitive and should never have been given or granted a pardon by the facts that you know?

 

Is that what we should conclude from your statement?

 

LIBBY: No, sir. I believe in all of the evidence I know that there was no tax liability.

 

KANJORSKI: And do you believe, as a result, the pardon would be warranted insofar as there are no facts that you know of that supports the criminality charged against your former client?

 

LIBBY: There are no facts that I know of that support the criminality of the client based on the tax returns you've been discussing.

 

KANJORSKI: So that on all of the facts that you know, is the pardon issued by the president justified?

 

LIBBY: I cannot say whether the pardon is justified because I don't have those facts and that application form.

 

KANJORSKI: Mr. Libby, I'm not asking to take any other facts than the facts that you have. And we're pretty able up here to understand as a lawyer for a couple of years working for a very wealthy guy and you come to the conclusion with Harvard law professors and Georgetown law professors about a lot of things. And we're going to accept all of what you know, accept nothing of what anybody else knows because obviously you don't know. We're asking an opinion.

 

I mean I like to see a guy hedge, but that's unreasonable. You either have an opinion or you don't have an opinion. If you don't have an opinion, tell us you don't have an opinion and therefore your client may have been a crook, should have gone to trail, was a fugitive, or do you have a opinion he wasn't?

 

Do you have an opinion he was a fugitive?

 

LIBBY: In every common sense term of it, yes, he was a fugitive.

 

KANJORSKI: OK, do you think he was a fugitive on justifiable charges or was he a fugitive because there was a mistake of the interpretation of the law by the Southern District of New York?

 

LIBBY: I believe that the Southern District of New York misconstrued the facts in the law, and that looking from all of the evidence available to the defense, he had not violated the tax laws.

 

KANJORSKI: And was not a fugitive?

 

LIBBY: No, he was. In every common sense term of the word, he was a fugitive.

 

WAXMAN: How about in a legal sense?

 

LIBBY: There is a fugitivity statute which is very complicated. I haven't looked at it in years. It has to do generally with avoiding state process. It wasn't a state process. A very technical matters--I don't recall them after so many years now.

 

WAXMAN: Without knowing all of the details, it sounds like you would even dispute whether legally he was a fugitive even though the common definition of the word, he was a fugitive.

 

LIBBY: No, I think, you know, you would have to say he's a fugitive, but I don't know what the term when you say legally, the question is what statute or what provision are you talking about.

 

I don't have any of those in front of me. It's been years since I looked at it. I believe he was a fugitive in any common sense meaning of the term.

 

WAXMAN: Let me, before I yield further, of course, you know only knew the information as a defense lawyer for many years, but you knew everything the prosecutors had to say about Mr. Rich and Mr. Green. You've heard their arguments. I assume you also followed the hearing we had three weeks ago, because we had the two prosecutors in here. I know you're busy but you might have read in the newspaper their arguments.

 

You disagree with them, don't you?

 

LIBBY: From everything I know, yes, sir.

 

WAXMAN: At the hearing this committee had several weeks ago, there was considerable discussion about the merits of the Rich case. And I want to read to you some of the statements that were made and ask you about them.

 

Let me read to you what Representative Shays said at the hearing. Quote: "There are some who believe, and I am one of them, that former President Clinton appears to have pardoned two traitors to their country."

 

Do you agree with that statement?

 

LIBBY: As I recall from the snippets I've heard, he was referring to a series of trades that they may have made or business engagements that they may have had, one of which was with Iran, one of which was with Iraq if I recall, South Africa maybe, Russia, something like that.

 

WAXMAN: Whatever. Do you think that...

 

LIBBY: I don't have any knowledge about any of those other items. The only one that I've heard about was the transactions with Iran and that was one of the claims in the indictment.

 

WAXMAN: Well, and you thought the indictment was not justified.

 

LIBBY: Yes, sir. That was not my portion of the case, but I've always understood from the experts that handled that portion of the case that the Rich companies were allowed to trade with--the Swiss-based Rich companies were allowed to...

 

WAXMAN: Do you agree with the statement that these two gentlemen were two traitors to this country?

 

LIBBY: I can understand someone using those terms, sir.

 

WAXMAN: Do you agree with them?

 

LIBBY: Their companies engaged in trades with Iran...

 

WAXMAN: Traitors, not traders.

 

LIBBY: No, I'm sorry, sir. I was just trying to finish. Trades with Iran during a period when hostages were held, and that was an act that you could consider an act of a traitor.

 

WAXMAN: That somebody else could consider, but you don't consider it.

 

LIBBY: I could consider that also, sir.

 

WAXMAN: You could.

 

LIBBY: Yes. I did not condone it. I didn't advise it. I don't admire it.

 

WAXMAN: At the first committee hearing on this pardon a few weeks ago, two of the former federal prosecutors who pursued Mr. Rich, Morris Weinberg and Martin Auerbach, testified. Mr. Auerbach said, "The merits in the Rich case were unquestionably in the government's favor." Do you agree with that statement?

 

LIBBY: Not from what I know, sir.

 

WAXMAN: In their joint written testimonies to the committee, the prosecutors stated that in December 1981 it was apparent that they had uncovered, at that time, the biggest tax fraud in history. Do you agree with that statement?

 

LIBBY: Not from what I know, sir.

 

WAXMAN: I mentioned earlier an analysis done by two distinguished law professors, Bernard Wolfman and Martin Ginsburg, which defended Mr. Rich's companies from charges of tax evasion. Some people have implied that this analysis was flawed because it was based on biased information. At our last hearing, former prosecutor Martin Auerbach said that the professors admitted, quote, "making no independent verification of the facts, but accepting the statements thereof made to us by Mr. Rich and Mr. Green's attorneys," end quote.

 

Mr. Libby, can you tell me, where did you get the information for the Wolfman-Ginsburg analysis? Where did it come from?

 

LIBBY: We got the basic trading documents and summaries of those documents as to how the trades occurred. Some of the documents were provided to me from the files of the law firms that had been engaged in defending Mr. Rich during the period when he was under investigation through the criminal indictment. Some of the documents were documents provided by the prosecution.

 

WAXMAN: Do you believe that information was accurate?

 

LIBBY: The information provided to me?

 

WAXMAN: Provided to Mr. Ginsburg and Mr. Wolfman.

 

LIBBY: Yes, sir.

 

WAXMAN: Let me yield to Mr. Cummings.

 

CUMMINGS: I just have a few questions and I'll yield back.

 

Mr. Libby, I'm not going to ask you whether you thought the pardon should be granted because I think you pretty much answered it already. I mean, I'm just listening to what you said. But let me ask you these questions.

 

Do you believe that crimes were committed by these two gentlemen?

 

LIBBY: Sir, I only know the facts related to this particular indictment.

 

CUMMINGS: Yes. I'm talking about with regard to this indictment, which is

the subject of this pardon.

 

LIBBY: I do not believe that these two gentlemen, based on all the evidence available to me, were guilty of the charges for which they were indicted.

 

CUMMINGS: Which would mean that, and I'm just limiting myself to the scope of the indictment, so you don't believe--and you would have to--I guess you would--you can tell me--you had a pretty good bit of information about these cases, did you not; that is, the subject of the indictments?

 

LIBBY: I endeavored to get all the information I could, sir.

 

CUMMINGS: Now, let me ask you this. Do you think that the Southern District of New York treated these gentlemen unfairly?

 

LIBBY: I believe that in some aspects, the use of RICO, the Southern District of New York was quite vigorous. I would also say it was largely the fault of the defense. The defense never went to the government and presented their case in that period. They, instead, chose to play hardball, if you will, and refused to cooperate with the government.

 

I believe if they had cooperated with the government, laid out the case, how the transactions worked and what they were, that the Southern District of New York would have reached the same conclusions about the trades that the Department of Energy reached when the Department of Energy looked at these trades and said that, in fact, the domestic transactions and the foreign transactions were linked, and what follows from that is that no tax obligation was owed that was not paid.

 

CUMMINGS: You answered the question with regard to the fugitive status. Let me ask you this. Do you believe if a person is a fugitive that that should automatically rule them out of being pardoned? And I'm just talking generally now.

 

LIBBY: Sir, I never studied the pardon power, never looked at cases referring to the pardon power. I'm not a student of how it has actually been employed. My general position would be that the Constitution leaves the power of the pardon unfettered, virtually unfettered by the president, and I would be loath to sit here and second guess the founding fathers.

 

CUMMINGS: I yield whatever time I may have to the gentleman.

 

WAXMAN: I'd just ask one last question on that point. While you're avoiding saying whether the pardon would be appropriate, the fact that they were fugitives, and everything you know about this case, would it lead you to conclude that if the Southern District court of New York decided to drop the charges that it would be inappropriate? Or do you think it would have been appropriate?

 

LIBBY: I thought from everything known to me, they should have.

 

WAXMAN: So you think it's appropriate for the prosecutor to drop the charges, but you're not sure whether it was appropriate for the president to use the power to resolve a prosecution by dismissing it.

 

LIBBY: It would be appropriate if the president knew what the Southern District knew and looked at the entire case and made a decision on it.

 

WAXMAN: If he knew what you knew, could he reach that conclusion, that the case ought to be dismissed...

 

LIBBY: Well, the president can reach any...

 

WAXMAN: ... and pursue it as a civil matter, not a criminal matter?

 

LIBBY: The president can reach any conclusion he wants to reach on a pardon, as I understand it.

 

WAXMAN: And what would you have concluded?

 

LIBBY: Excuse me?

 

WAXMAN: If you called you up and asked you, what would you tell him?

 

LIBBY: I'd have recused myself.

 

BURTON: The gentleman's time has expired.

 

Mr. Libby...

 

WAXMAN: Mr. Chairman, Mr. Kadzik has to catch a flight. Do we know whether there are questions that we need to pursue with him?

 

BURTON: Well, let's stop the clock here. Do we have other questions for Mr. Kadzik?

 

WAXMAN: I mean, we did bring him back from California.

 

BURTON: Do we have more questions for Mr. Kadzik?

 

Well, while we're checking on that, let me go ahead and ask some questions of Mr. Libby.

 

Mr. Libby, did you talk to or have access to the witnesses in the case for the prosecution?

 

LIBBY: I do not know who all the witnesses for the prosecution were, sir. I had access to some witnesses whom the prosecution have interviewed.

 

BURTON: But the fact of the matter is you only saw the defense side of the equation. Isn't that correct?

 

LIBBY: That is correct, sir. I only had the information available to defense counsel.

 

BURTON: Now, the Marc Rich companies paid $200 million in fines and penalties when they pled guilty, and they pled guilty in open court, and their attorneys were Peter Fleming, Boris Kostalance (ph), Peter Zimroth and John Tigh (ph). I think those are pretty prominent attorneys nationwide, are they not?

 

LIBBY: Yes, sir.

 

BURTON: Do you think that they would plead guilty and pay a $200 million fine if they thought they didn't have a problem with the case?

 

LIBBY: I think they would plead guilty, sir, if their clients told them they should plead guilty. I assume their clients, at that point, felt they wanted to plead guilty and have...

 

BURTON: And pay $200 million.

 

LIBBY: And pay $200 million rather than continue the case, yes, sir.

 

BURTON: So what you're saying is the judgment that you have here that these gentlemen didn't break any laws is your judgment, it may not be the judgment of others who had more knowledge of the case than maybe you did when they had all the prosecuting witnesses before them?

 

LIBBY: That's correct, sir. That's my...

 

BURTON: Well, I think that's very important, because my colleagues on the Democrat side, who have said that they condemn the president for this pardon, have been making the case that the president should have pardoned him. But the fact of the matter is the gentleman fled the country, was a fugitive for 17 years, paid a $200 million fine, dealt with every enemy of the United States, including those who were holding our Americans hostage with the threat of death hanging over their heads. He tried to smuggle documents out of the country that were relevant to the case. And Mr. Fink, one of the interns, I guess, or people--associates with one of the firms with which you were working, was involved in trying to help get those out of the country on a Swiss airplane, if I'm correct. Am I correct on that?

 

FINK: You are correct, but your description is not.

 

BURTON: Well, were they trying to get the documents out of the country?

 

FINK: The documents were on an airplane that was going to Switzerland, but they weren't being smuggled.

 

BURTON: Well, were they being taken out of the country and were they documents that the government wanted?

 

FINK: Yes.

 

BURTON: OK. Well, that's all I need to know. But the fact of the matter is this: My colleagues can't have it both ways. They can't condemn President Clinton, as they have roundly, for pardoning Marc Rich, and then have you, as the vice president's chief counsel here, and try to make you justify the pardon. The fact of the matter is that Mr. Rich was a fugitive from justice. He renounced his citizenship and for 17 years has been trying every way he could to get pardoned.

 

Now, you may disagree with the outcome, Mr. Libby, you were a defense attorney and you were working on this and I understand that. Just like Jack Quinn was working on that as well. But the fact of the matter is those who knew the case very well, prominent attorneys, advised Mr. Rich, a billionaire, that he probably ought to pay $200 million and get this thing behind him and they did. All of his companies pled. And then when he thought he was going to face criminal charges, he fled the country. He took off. He went to Switzerland.

 

Now, most people, if they think they're not guilty and there's an indictment against them, they will come back and they will stand trial. And they even offered, our Justice Department offered to drop, or at least, consider dropping the RICO charges against him and he still didn't want to come back. They offered to give him bail, just take his passport so he would stand trial, and he still wouldn't come back.

 

And so for those to try to say that Mr. Rich was not guilty and try to make you, who were working on the defense side, say that he was not guilty and justify that, just astound me, because they've been condemning, like we have, the pardon of Mr. Rich in the waning hours of this administration.

 

So I'm disappointed that we've taken this turn today because I don't think it's justified, number one. And, number two, I don't think it's justified to ask you, who were working on the defense side, to start making a judgment and to try to put you on the spot simply because you're working for the vice president of the United States and you may have more credibility in this particular case.

 

I'll be happy to yield my...

 

WAXMAN: Mr. Chairman?

 

BURTON: Excuse me. Mr. Kadzik, do we have any more questions for--Mr. Kadzik, you can catch a plane, if you like.

 

KADZIK: Thank you, Mr. Chairman. I appreciate your accommodation.

 

BURTON: Thank you very much. Thank you for being here. We appreciate it.

 

Do either of you have any response to my remarks?

 

LIBBY: No, sir.

 

BURTON: Who's next on your side?

 

Mr. Kanjorski?

 

WAXMAN: I just want to point out for the record that we're asking Mr. Libby, who was the defense counsel, who knew more about this case than anybody else, his views of it, and we're not asking him because he works for the vice president, we're asking him because he's a knowledgeable person about this whole matter. And I can't understand the chairman's outburst about it because Mr. Quinn was asked these questions over and over again, and I think we're entitled to ask someone who has been an attorney for so many years.

 

Thank you.

 

KANJORSKI: Mr. Chairman, I want to reiterate for the record, those of us that know the facts that we know, would not agree or exercise the judgment as the president had, but that's not the questions we're asking Mr. Libby. We have a witness here that is not only an expert, but has probably more information in regard to this case than anybody that's testified before the committee.

 

And I'm not going to try and--I think in fairness, if you want to express an opinion on the pardon, I'll give you an opportunity to do that. If you decide you don't want to, Mr. Libby, I won't press that. You'd rather not go further on that?

 

LIBBY: Thank you, sir.

 

KANJORSKI: OK. But you did say something that I want to go back, and let me get this in context now. You represented Mr. Rich from what period of time until which period of time?

 

LIBBY: From spring of 1985 until fall probably or end of summer of 1989. Not continuously, of course, but periodically. And from 1993, after leaving the government, some period after leaving the government, you know, with the matter that was under consideration, until about 1995. It was then inactive. And I represented him again in connection with Mr. Quinn's approach to the Southern District and the Department of Justice sometime in 1999, and that effort ended sometime around spring of 2000.

 

KANJORSKI: '99 until the end of 2000 approximately.

 

Now, at what period of time and what information that came to your attention that you made the conclusion, both legally and otherwise, that he was a traitor?

 

LIBBY: Sir, what I said is that I can understand someone viewing the evidence that he traded with Iran as a traitor.

 

KANJORSKI: The question wasn't put that way, Mr. Libby.

 

LIBBY: I'm sorry.

 

KANJORSKI: The question was, do you consider Mr. Rich a traitor?

 

LIBBY: On that trade, I can understand that, yes, sir.

 

KANJORSKI: No, I didn't ask you if you can understand.

 

LIBBY: Yes, sir, I do not condone...

 

KANJORSKI: Mr. Libby, do you consider him a traitor or don't you? I mean, it's just very straightforward. If you don't consider him a traitor, say you don't. If you do, say you do.

 

LIBBY: I would not have made that trade. You could apply the word traitor to it.

 

KANJORSKI: Fine. Do you consider him, for having made that trade, a traitor?

 

LIBBY: Sir, it's not a word I would use, but I accept it.

 

KANJORSKI: You can't be half-pregnant, Mr. Libby, he is or he isn't. It seems to be very simple. Is he or isn't he? You said before you consider him a traitor. Is that correct, what I heard?

 

LIBBY: I would say yes.

 

KANJORSKI: Right. And what I'm interested in is when did you consider him a traitor? When did you get that information, become aware of that information to draw that conclusion personally?

 

LIBBY: The information is in the indictment which was issued in 1983, something like that.

 

KANJORSKI: So for this period, the last 17 years, you've considered this client of yours a traitor.

 

LIBBY: Sir, my understanding is that the conduct in which he engaged was not illegal, but I agree with the description that you could consider him a traitor for trading with Iran during that period.

 

KANJORSKI: Not that I could consider him. Do you consider him a traitor?

 

LIBBY: Yes.

 

KANJORSKI: How many traitors to this country do you call up in your official capacity?

 

LIBBY: I called none, sir.

 

KANJORSKI: You did on January 22 when the new administration took office and you were chief of staff to the vice president of the United States.

 

LIBBY: Not in my official capacity, sir.

 

KANJORSKI: Oh, but you do call traitors in your unofficial capacity.

 

LIBBY: No, sir. I called Mr. Rich to respond to his request.

 

KANJORSKI: Why would you call a traitor, somebody you consider a traitor, after he got a pardon that was a hullabaloo in this country? You can't tell me you didn't know about the reaction to the pardon. So you knew that there was a hullabaloo in the country about the pardon. You, in your own mind, consider him a traitor. Why did you call him?

 

LIBBY: Mr. Rich is a former client. I believed he was not guilty of those things of which he was charged, based on the evidence available to me. He had called Mr. Green to say that he wished to call me and thank me for my services. I had always taken his calls when he was a client of mine. He had been pardoned by the president for those very trades. And so I called him.

 

KANJORSKI: Would you call another traitor in the country again? Would you ever do that?

 

LIBBY: Don't believe I know any other traitors.

 

KANJORSKI: Stick around this committee long enough you may learn something.

 

BARR: Time of the gentleman has expired.

 

Mr. Fink, drawing your attention, please, to exhibit 135 we were looking at earlier and the e-mail in the middle of that page from Mr. Azulay to you dated February 10 of 2000. The operative phrase there that we're concerned with is "the unconventional approach." What did you take that phrase to mean, "the unconventional approach."

 

FINK: I have no recollection of this particular e-mail. I do not know what Mr. Azulay meant on February 10, 2000. But I do know that I don't believe it was a pardon application.

 

BARR: You replied to him, and you don't address it expressly in your reply, you provide some level of detail regarding the background of the steps that the U.S. attorney's office for the Southern District of New York at various times had said they were willing to consider. And then you say, quote, "As for your other question, to the best of my knowledge, other than the negative answer, all other matters remain the same," close quote. To what were you referring there and what does that sentence mean?

 

FINK: I do not remember.

 

BARR: It's a rather unusual e-mail that Mr. Azulay sends. His use of the term "the unconventional approach," did that give you some pause at the time, did you wonder what he was talking about?

 

FINK: I may have actually known what he was talking about at the time, I just do not recall now what he might have been talking about.

 

BARR: You have no reason to have any thoughts whatsoever or can't draw any conclusion looking at this e-mail as you sit there?

 

FINK: That's correct.

 

BARR: And with regard to your e-mail, the one at 10:29 a.m., you don't know as you sit here what you were referring to in that one sentence that I read.

 

FINK: "All other matters remain the same"?

 

BARR: Well, the whole sentence: "As for your other question, to the best of my knowledge, other than the negative answer, all other matters remain the same." Were you replying to his notion of an unconventional approach?

 

FINK: I read this e-mail almost as you do. I do not recall it and I do not recall what Mr. Azulay was talking about. I did volunteer, because I thought I should, that I have every reason to believe he was not talking about a pardon, because I think I would recalled any serious discussion about a pardon at this time, and I do not.

 

BARR: I mean, to be honest with you, I have no idea what he's talking about. I don't know that he is necessarily talking about a pardon.

 

FINK: I thought that's what you suggested earlier. If you didn't...

 

BARR: No, I haven't asked any questions. No, I was just wondering here if you could enlighten us as to what it is that he's talking about. He might have had something completely different in mind, I don't know.

 

FINK: I do not know.

 

BARR: Mr. Libby, the very next exhibit, 136, from Mr. Fink to Marc Rich, and along about the middle of that e-mail it mentions your name. It says that, "All agree that we should try to approach the DOJ tax lawyers even without the SDNY--Southern District of New York--if necessary. I know that Scooter always felt this was our fallback position."

 

Could you explain briefly what that fallback position was?

 

LIBBY: Sir, as I understand it, the Department of Justice has the right to review any decisions made by a U.S. attorney for any particular district.

 

BARR: On tax matters.

 

LIBBY: On tax matters. I think on all matters, but you would have to consult someone who does more of this than I do. My feeling was that the Southern District of New York--I actually don't recognize this sentiment particularly, but I believe that if the Southern District of New York did not give us a satisfactory answer the only recourse was the Department of Justice.

 

BARR: I don't want to put words in your mouth. Were you basically saying that, given your understanding of the position of the U.S. attorney's office for the Southern District of New York, the best approach might be to take the merits of the case and argue them directly to main Justice?

 

LIBBY: If we could get main Justice to listen to us, the tax lawyers at main Justice, we would have welcomed the opportunity to, yes, sir.

 

BARR: Which is essentially the conclusion Jack Quinn reached, I think.

 

LIBBY: That's correct, sir.

 

BARR: Thank you.

 

The gentleman from Maryland, Mr. Cummings.

 

CUMMINGS: Thank you very much, Mr. Chairman.

 

I just want to go back to something that Chairman Burton said a few minutes ago that really disturbed me. And I want to make sure we're very clear on this, Mr. Libby, because I want to be very fair to you.

 

We on this side, Mr. Burton is correct, have major problems with the judgment of the president with regard to these pardons. As to trying to get you to say that the pardons should have been granted, I don't think that's the case. What we're trying to do, though, is get to the truth.

 

I mean, when we're talking about pardons, we're basically talking about forgiveness of criminal activity. And we've already had Ms. Nolan, Mr. Lindsey, Mr. Podesta come in here and testify that they had a problem with the granting of the pardons. And there was no effort on our part to, you know, tear up their testimony. As a matter of fact, we took time out on this side to applaud them for coming in, and I heard Mr. Waxman say it over and over again, applauding them for coming in and making public what had previously been private and being something that was advice given to the president that the president did not adhere to. And so it's not about trying

to get you to say that the president should have pardoned Mr. Rich.

 

However, as Mr. Waxman has said, and Mr. Kanjorski has said, you are a person who has spent many years--years--dealing with this matter. As a matter of fact, you are without question probably one of the most knowledgeable people about this case. And so it would seem to me--it does not matter to me whether you are the chief of staff for Vice President Cheney or not, to me that's irrelevant. What is relevant, however, is that you have facts with regard to this case.

 

And what the media has sort of zeroed in on is the whole question of what, if any justification did the president have for granting these pardons, was it bad judgment, was there criminal activity. And you have come and you've said something that's very interesting. And I'll be very frank with you, I did not expect it but I'm very pleased to hear it, that you do not believe that these two gentlemen, the subjects of this pardon situation that we're discussing, you do not believe, based upon the information that you have, or had, that they've committed any crimes. I mean, that to me says a whole lot.

 

And I think it's not about--I mean, and so if you've got a pardon apparatus which is supposed to forgive, be about the business of forgiving criminal activity, but if there are those who are most familiar with the case that have come to the conclusion that there was no criminal activity, then it seems to me that one could make a reasonable argument that perhaps the president at least had some rational basis for doing what he did.

 

I did hear your testimony with regard to some questions that Mr. Waxman asked you earlier when he went through very carefully the justifications given in the New York Times piece with regard to President Clinton's justification for what he did, and it seems to me--now, I'm not sure, because I was not in the room at the moment, but as I listen to it--that you agree with the various points that President Clinton made as the basis for his opinion.

 

I'm not dealing with whether you agree with whether he should have pardoned, but at least the basis. Was that correct?

 

LIBBY: Yes, sir, based on the information available to defense counsel.

 

CUMMINGS: Very well.

 

Now, let me ask you this. You keep saying that. And I mean I just want to, you know, be real clear on this. I don't want the public to get the information that defense counsel lacks a whole lot of information about a case. Usually you have a pretty good idea what the other is presenting, and that's how you prepare your defense. Is that correct? I mean, most times the defense counsel have a pretty good idea of what is being offered on the other side, and apparently there had been some talk of negotiations, so you had a pretty good idea, would you guess, about what the prosecution had?

 

LIBBY: It's very true in civil litigation, sir, that the defense usually has a very good idea of what the plaintiff has, because civil cases we're allowed to discover every bit of relevant evidence. As you may know, in criminal cases the government does not share its cards with the defense, they hold them close to their chest, except for certain things they're required by the court to hand over. We didn't reach all of the phases of the case where that would have been turned over.

 

So I've been very careful, as best as I can, sir, to help the committee, to say I do not know what evidence the government may have claimed they had. All I knew was the evidence available to defense counsel.

 

CUMMINGS: One last question, Mr. Chairman.

 

You had dealings with the government, did you not?

 

LIBBY: I had two meetings with the government in 1987, sir.

 

CUMMINGS: And during those times they didn't reveal to you what they had, anything of what they had?

 

LIBBY: No, sir. They made some statements. In fact, Mr. Auerbach said to us that there was evidence that we did not know.

 

CUMMINGS: Very well.

 

Thank you.

 

BARR: Thank you.

 

The gentleman from Connecticut, Mr. Shays, is recognized for five minutes.

 

SHAYS: Thank you, Mr. Libby. And thank you, Mr. Fink. You stayed around a while. It's a late night and I appreciate it.

 

And I will confess, Mr. Libby, that this is a little awkward for me, because I consider you a person in a very powerful position working for someone I have tremendous respect for, who I consider one of the most powerful people in the United States, and you're before the committee, and thank you for being here.

 

But what I wrestle with is just not doing what I've been critical of my colleagues on the other side of the aisle for doing, and that is not asking the questions you really want to ask of maybe your friends, and I consider you and obviously this administration, I hold you up to the highest esteem. But I do want to ask my questions.

 

The first thing I want to say, though, is that it's my understanding that you in no way were involved in this pardon process.

 

LIBBY: Correct, sir.

 

SHAYS: And that the purpose for you being invited to this committee was that when you weren't working for the government you represented Mr. Rich over periods of a number of years.

 

LIBBY: Correct, sir.

 

SHAYS: It's also my understanding that attorneys can represent people, one, they think are guilty, and, two, they may not like, but everybody's entitled to their defense.

 

LIBBY: That is correct, sir.

 

SHAYS: Now, it seems to me that you have some affection for this client that you had and you believed in his cause.

 

LIBBY: That is correct, sir. Well, I believe that all the evidence available to me indicated that his companies were not guilty of the crimes for which they had been indicted.

 

SHAYS: They may have been guilty of other crimes, but not these crimes.

 

LIBBY: I only represented him with respect to these crimes, sir.

 

SHAYS: Now, Joe DiGenova, when he commented about the Marc Rich pardon, said, "The bottom line is that Mr. Rich, while never subjecting himself to the jurisdiction of the United States, got a pardon under circumstances which are so apparently corrupt by the appearances, large donations by his former wife to the Democratic Party, gifts to the Clinton family, the refusal of the president to talk to the Justice Department about the case." That was said on "The Today Show" January 30.

 

He also said that, "Rich was indicted and he was a fugitive, which makes him a highly unusual case in that it is rare for someone who has sought to evade the criminal justice system by becoming a fugitive to be pardoned; in fact, I think it's unprecedented." That was said on the "McLaughlin" on January 26.

 

He said on "McLaughlin" on the 26th, "What is striking about the one pardon that didn't happen was the president did not pardon the American spy Jonathan Pollard, who spied for Israel. It is clear that Pollard's people did not give enough money to the DNC or the president and that they had the wrong lawyer, Alan Dershowitz. So that there's a lesson there for people seeking a pardon. Hopefully, from no future president the way this president uses pardons."

 

Obviously, Joe DiGenova believes that this was a pretty sad affair, but he's representing Jack Quinn who is entitled to his defense and he believes that Jack Quinn had every right to lobby the way he did.

 

What I'm interested in knowing is, would you have ever sought to lobby either this administration or the other administration for a pardon for Marc Rich?

 

LIBBY: You mean...

 

SHAYS: You didn't seek, you didn't try to, but I'm asking you, if you had been paid to do so and you were a private sector, would you have sought to get a pardon for this man?

 

LIBBY: Were I not involved in the government and still in private practice, would I have participated in an attempt to get a pardon for Mr. Rich?

 

SHAYS: Right.

 

LIBBY: Quite possibly, if the client wished us to get a pardon and I did not see any problem with it. I don't see any technical problem with going for a pardon if a client wants to.

 

SHAYS: Let me ask you this: Would you, in your capacity today, advocate, first, advocate that a pardon be granted without making sure that it had been properly vetted?

 

LIBBY: No, sir.

 

SHAYS: You would, in other words, make sure that it was properly vetted.

 

LIBBY: If you're asking me...

 

SHAYS: Properly vetted. You would make sure...

 

LIBBY: Correct. I would want...

 

SHAYS: What would, in your judgment, what would that involve?

 

LIBBY: Proper vetting by the White House of a pardon application?

 

SHAYS: Yes. What would that mean?

 

LIBBY: I assume they should gather all relevant information about the person.

 

Let me say that the president's pardon is unfettered--the president's power to pardon is unfettered, so technically it would be proper for him to do it without consulting with anyone and it would be not questioned. I believe...

 

SHAYS: Again, I know my red light's on, but when you guys do this to me it just blows my mind. Having an absolute power, if anything, means, doesn't it, that they should do an even more thorough job to make sure they have vetted it properly?

 

LIBBY: Yes, sir. I was about to finish by saying...

 

SHAYS: I'm sorry.

 

LIBBY: ... while he has that absolute power, it would seem to me he should exercise it by bringing in all the possible information that would be relevant to him and thereby have a process which would be fair and have very high standards.

 

SHAYS: Including...

 

WAXMAN: Mr. Chairman, the time has expired.

 

BARR: The time of the gentleman has expired.

 

WAXMAN: If I might be recognized?

 

BARR: The gentleman from California is recognized for five minutes.

 

WAXMAN: Mr. Libby, you just answered what you would advise if you were advising the administration on how to handle this sort of thing. But you were for many years the counsel for Mr. Rich, and can you tell us how much money you might have received or your firm received in that capacity?

 

LIBBY: I received none. The firm would receive the fees. I don't know offhand how much it would be.

 

WAXMAN: Over $100,000? Over $500,000? Over $1 million?

 

LIBBY: Oh, certainly, sir.

 

WAXMAN: Over $2 million?

 

LIBBY: It's probably in that ballpark, I would guess.

 

WAXMAN: Now, as a good lawyer...

 

LIBBY: Different firms, I was in different firms over this period, received...

 

WAXMAN: But you had Mr. Rich as your client in the different firms?

 

LIBBY: Yes.

 

WAXMAN: Now, as the defense counsel for Mr. Rich, you heard what he had to tell you, but wouldn't you make an investigation as to what the case might be on the other side to try to prepare for your client's best interest?

 

LIBBY: Certainly, sir.

 

WAXMAN: And when Mr. Wolfman and Ginsburg had the information before them to make their report did they get all the documents that they needed to get, in your opinion, to give a sound judgment on their part?

 

LIBBY: All the documents available to us were available to them.

 

WAXMAN: OK. And you think that they had the documents that would have given them the information they needed to reach the conclusions they reached?

 

LIBBY: Yes. They had the information that they needed, to the extent that we had it, to reach their conclusions.

 

WAXMAN: Well, a lot of people try to discredit their analysis by saying they didn't have valuable and accurate analysis of the situation. You're not critical of them, you think that they had valid information.

 

LIBBY: I believe they had the best information that they could have.

 

WAXMAN: And you had the best information you could have, although no one has all the information, but you've told us that based on all the information you had you didn't think that Mr. Rich was--or his companies were guilty of the crimes for which they were charged.

 

LIBBY: Based on the information available to us, yes, sir.

 

WAXMAN: You don't want to say whether the president can give a pardon or not, you don't want to reach the conclusion on that issue. But would the president of the United States have to be corrupt, would the president of the United States have to take a bribe to reach a conclusion, in his mind, on the merits that perhaps Mr. Rich and Mr. Green were not guilty of the charges brought against them?

 

LIBBY: Would he have to take a bribe? No, sir.

 

WAXMAN: Would somebody have to take a bribe to reach that conclusion or do you think somebody, on their view of the merits, could agree that these charges shouldn't have been brought and that a pardon would resolve the matter just as the prosecutor dropping the case would resolve the matter?

 

LIBBY: I don't know what was going through the president's mind when he made his decision...

 

WAXMAN: Of course you don't know, and I don't know either. But would a reasonable man, reaching the conclusion that he reached, only come to that conclusion if he were corrupt or could he have the view of the merits that you seem to have also had, that the charges weren't justified?

 

LIBBY: I believe it would have been more reasonable for the president to have received fuller information, from what I understand.

 

WAXMAN: Oh, I think so, too. I feel very critical that he didn't get more information. But based on what he had, it's not unthinkable that he could reach this conclusion that he reached. You reached the same conclusion, that the charges brought against Mr. Rich and Mr. Green were not justified.

 

LIBBY: Correct, sir. I reached the conclusion that based on the evidence available to us, he was not guilty of the crimes for which he had been indicted.

 

WAXMAN: Now, I don't want to belabor the point about your view that they might be traitors, I don't know what the legal ethics are for representing people you consider to be traitors for 17 years, it's a little puzzling you would call a traitor up and congratulate him on a pardon.

 

And then I think there were technical issues, maybe you were involved in them, but whether the subsidiaries, who were foreign subsidiaries, whether they're parent companies or sister companies. Do you think that there's a legal argument that perhaps they weren't traitors to the country of the United States?

 

LIBBY: There's a legal argument that the trade that was engaged in was a legal trade, as I understand it.

 

WAXMAN: And if it were a legal trade would they be traitors to the country, this country?

 

LIBBY: Well, you can take the view that it what they were doing, while legal, was not in the country's best interests, and that's...

 

(CROSSTALK)

 

WAXMAN: It may not be in the country's best interests, but that doesn't make you a traitor. A traitor is a legal matter.

 

Mr. Fink, do you think that Mr. Rich and Mr. Green were traitors to this country? You know a lot about this whole case.

 

FINK: That was never my perception.

 

WAXMAN: Thank you.

 

BARR: Mr. Libby, in the editorial published by the New York Times we've discussed earlier today, President Clinton wrote, quote, "The applications were 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," close quote. That was not an accurate statement that the president made, was it?

 

LIBBY: That's correct. It was inaccurate.

 

BARR: The fact of the matter is that you've never reviewed the pardon application, have you?

 

LIBBY: Even to this day, sir.

 

BARR: And you have never advocated on behalf of the pardon application, have you?

 

LIBBY: That's correct, sir.

 

BARR: Do you know where Mr. Clinton got this wrong information?

 

LIBBY: I have no idea, sir.

 

BARR: Thank you.

 

I yield to the gentleman from Connecticut, Mr. Shays.

 

SHAYS: Mr. Libby, interrupted you when I asked you about absolute power because I anticipated an answer that I had no right to anticipate. It was your testimony that an absolute power, because it's an absolute power, needs to be exercised more carefully.

 

LIBBY: I would agree with that statement, sir.

 

SHAYS: And the question I now wonder, because one of the issues that this committee does is we look at waste, fraud and abuse, and we don't legislate, we don't appropriate, but what we do do is recommend changes. Now, obviously an absolute power can be exercised by this president any way he chooses to, but one of the hopes that I have is that this committee will recommend to this administration that they don't do all the stupid things that we heard happened in today's testimony. And I would make the assumption that your people are looking at what happened in the last few months and are hopefully saying, "We're not going to do the same thing."

 

LIBBY: President Bush has stated, sir, that he believes that the power is a virtually unfettered power but that he would exercise it fairly and with high standards.

 

SHAYS: It's also my understanding that we need to look at the revolving-door process. And Mr. Kadzik is an individual who was hired, frankly, to lobby Mr. Podesta. He knew him. He was a client, Mr. Podesta was a client. And I'm not trying to say something, since he's not here to defend himself. That's pretty much factual, and I'll leave it at that.

 

LIBBY: No, sir.

 

CUMMINGS: And it was a case, I take it, from just based upon what you've told us, that you felt that your client would have had a reasonable, if he had gone to try, if they had gone to trial, would have had a reasonable shot, because you never can tell what a jury's going to do, but would have had a reasonable shot at being successful. Is that right?

 

LIBBY: Based on all of the evidence available to the defense, that's right, sir.

 

CUMMINGS: So when Mr. Shays talks about you not having all the facts, I mean, we understand that, but we also understand that you had quite a bit of information, as you testified to a little bit earlier.

 

Let me just go back to something that you said that I'm just curious about. You said that Mr. Rich called you and you all had a discussion with regard to the fact that he had been pardoned?

 

LIBBY: Essentially correct, sir. He called Mr. Green, left a message with Mr. Green, in effect, that he would like to speak to me.

 

CUMMINGS: And you did speak to him.

 

LIBBY: And I did speak to him, yes, sir.

 

CUMMINGS: Can you tell us about that conversation?

 

LIBBY: Sure. I called him from my home very early in the morning. He's in Switzerland and so there's a time difference. It was a very brief conversation. By the time he got on the phone, it might have been only a minute or so or a two-minute conversation, it was quite brief. He said that he appreciated what I had done for him over the years of working for him, of course prior to the pardon, and I congratulated him on having reached a goal that he had sought for a long time.

 

Of course, none of these issues had arisen at that point in time, I had no idea what had gone on in the pardon process, even a newspaper reader's idea of what had gone on in the pardon process. This all came up later.

 

CUMMINGS: And we fully understand that you were not a part of actually trying to get this pardon, we understand that. But when he thanked you, I take it that--I mean, if you can shed some light on this I'd appreciate it--that he was thanking you because you basically were the architect over the years for putting together enough information and, I mean, through your efforts--you said somewhere in the area of $2 million worth of work, that's quite a bit of work--but you were the architect for putting together a lot of the information that was probably used in Mr. Quinn's arguments and in the justification that the president gave in the article that has been

referenced so much here in the New York Times. Is that correct?

 

I'm not saying that you did it with the pardon intent, effort, but basically a lot of that information was probably used. Is that correct?

 

LIBBY: The defense team divided up the issues, sir. I worked primarily on the tax issue and I worked some on the energy issue. Mr. Fink's firm had experts in energy law and export controls and things like that, so his firm led that portion of the case. So it was a team effort in which my prime responsibility had to do with the tax side of the case.

 

CUMMINGS: Let me just say this. I do agree with Mr. Shays on this, that I think we've all learned a lot from this. And I'm glad that you are where you are in the administration because I think that there's nothing like going through a process like this that teaches us more. I mean, a lot of people can tell us, but once we go through this process I think it is a very tough lesson about trying to make sure that, you know, we can see how things can be dealt with in a proper fashion in the future. And I appreciate your comments in response to Mr. Shays' questions about, you know, the administration and President Bush and how he intends to handle these matters. And I do appreciate your testimony.

 

LIBBY: Thank you, sir.

 

I'm Phil Barnett, the counsel for the minority.

 

FINK: Good evening.

 

BARNETT: Good evening. It definitely is well into the evening.

 

Mr. Libby, I have a few questions for you.

 

LIBBY: Yes, sir.

 

BARNETT: I think you said earlier that you would asked by Mr. Green (ph), in November of 2000, "Did you want to work on the pardon application?" And you had said, if I remember right, you were tied up in the transition and you didn't have time and didn't think it was appropriate for you to do that. You didn't participate in the pardon application because you were busy with the transition. My understanding is, that was your testimony.

 

LIBBY: Just for the record, I could not hear the first part of your question.

 

BARNETT: I was trying to recall your testimony earlier this evening about--and I was beginning with a call you received from Mr. Green (ph), who had asked whether you wanted to participate in the pardon application, whether you wanted to represent Mr. Rich in the pardon process. And my recollection is that your answer was you didn't have time to do it, you were wrapped up in the transition, you had those duties and you didn't have time and it wouldn't have been appropriate for you to represent Mr. Rich in the pardon.

 

LIBBY: Correct.

 

BARNETT: It wasn't because you had a view that it would have been inappropriate to be a lawyer seeking a pardon for Mr. Rich?

 

LIBBY: That is correct. A pardon is a legitimate activity for a lawyer to engage in.

 

BARNETT: In fact, I think Mr. Shays actually asked you that question, "If you had a client who wanted a pardon, would you file a pardon application?" And your answer was, if the client wanted that, you would do that.

 

LIBBY: Assuming all of the circumstances were such that I was comfortable with, yes.

 

BARNETT: That's what Mr. Quinn, Jack Quinn, did in this case. He came on the case, I understand, in 1999, spent considerable amount of time with you understanding the merits of the case.

 

And he tried first at the Justice Department to get meetings and to get the case dismissed on the merits. When that failed, and there was a decision to seek a pardon, he took that on.

 

And he's testified in front of our committee for many, many hours. And boiling down his position, as I understood it, he said people might disagree about the pardon, but he thought it was defensible on the merits. And he was comfortable arguing for the pardon, because he thought it was defensible on the merits.

 

If you were taking this case on, would you make the same argument, as Mr. Quinn did?

 

LIBBY: I don't know. I don't know the details of what Mr. Quinn argued.

 

BARNETT: You know the detail of Mr. Rich's case, probably better than Mr. Quinn. And if you were Mr. Rich's pardon attorney, seeking a pardon, what kind of argument would you make?

 

LIBBY: I assume I would argue that and I might argue other aspects of the case, as well. It's pretty hard to, sort of, say what arguments I would make in an abstract pardon application, not before me, for a client I'm not aware of.

 

BARNETT: If we made it more concrete with Mr. Rich as the client and the facts as you know them, facts as they were available to the defense counsel, what argument would you make?

 

LIBBY: Generally, I would argue the facts of the case, as I assume Mr. Quinn did. I would argue other good deeds that may have been done by the accused, as I assume Mr. Quinn would have done. He might also talk about activities of the government, if there were any.

 

BARNETT: Would you make any argument that you thought was not defensible?

 

LIBBY: No.

 

BARNETT: These arguments that you would make in this case are arguments that you would think would be defensible arguments, and a defensible basis for the pardon.

 

LIBBY: If I were engaged in a pardon, I would only make defensible arguments.

 

BARNETT: Well, I guess the question I'm trying to ask is, is the pardon defensible on its merits?

 

LIBBY: I have no idea, sir.

 

BARNETT: Well, if you...

 

LIBBY: You've asked me if Mr. Quinn would make defensible arguments; I assume he would make defensible arguments. That's different from the decision to grant the pardon. I don't know about the decision to grant the pardon. I don't have the evidence that was before the president when he made his decision.

 

BARNETT: I don't know if you watched much of the hearing we had today, this afternoon. It was a long hearing, and you probably have lots of other responsibilities. As the scenario or the picture that came across, as I understood it, it was a broken-down process, particularly with regard to Mr. Rich's pardon.

 

It had come up, I think on January 16 in a meeting that the president was at along with Mr. Podesta and Mr. Lindsey and Ms. Nolan, and they had come away with the impression that the pardon wasn't going to go any place. They viewed it was inappropriate, and they didn't think the president was going to pursue it. As a result, they didn't seek out information from the CIA and the National Security Agency and others. I think they said it as a lot going on at the time. They thought it was a dead issue, so they just didn't pursue it.

 

Then they come to the evening before the transition. And the president's gotten a call from Prime Minister Barak, and all of a sudden he wants to revisit it. And there's really no time at that point to get additional information at that point. Essentially, all that's presented there is the evidence that's understood to the defense.

 

In that situation, is the granting a pardon unreasonable?

 

LIBBY: I don't know, sir. I don't know what evidence the president had before him or could have had before him or...

 

BARNETT: Well, there's one option he would have, the president, which I think, if I understood what many members have said, they might have preferred, which is to say, well, he doesn't have all the information, so he shouldn't go forward. He doesn't really have an opportunity to get more information, because he won't have the power to issue a pardon after noon the next day. So that would have been one option, presumably a reasonable option.

 

The other option he has is to make a decision.

 

And if he had the information that you had, information that was available to the defense, is it unreasonable for him to make the decision this case warrants a pardon?

 

LIBBY: I didn't hear all the testimony, the way you probably did today and other days, but I thought I heard some questioning of the witnesses which said, "If you had time to make one phone call, why didn't you make another phone call?" So it seems to me there is a third logical possibility to what you're saying, which is to pick up the phone and call other people to get other information.

 

I don't know what was done or what could have been done, but in what you have described there is a third possibility which would have allowed the president to get more information.

 

BARNETT: In law school they had the reasonable man test, if I remember law school, and I guess my question is going somewhat to that concept. There's a third option, I hadn't thought of a third option, that might have been the best option. But was it unreasonable to do the pardon option?

 

LIBBY: To me, it would be more reasonable to take the third option and call for more information, but I wasn't there at 2 o'clock in the morning or whenever it was.

 

BARNETT: You've testified earlier today that the charges weren't justified.  You looked at them and Congressman Waxman read through the different elements of the charges and the president's rationale and you agreed with those. So the charges aren't justified. It was an indictment brought that you think didn't have a sound foundation. That's based on the information you know.

 

LIBBY: Based on the information available to me and to defense team the charges--there was a compelling defense to the charges for which they had been indicted, that's right. But it seems to me that the president doesn't have to rely on that, he can ask for more information.

 

BARNETT: Right.

 

LIBBY: So if you're asking me what the reasonable man would do, I presume the reasonable man would ask for more information.

 

BARNETT: I know there are lots of members on both sides, I think, if I've listened to them over the days we've had, the time we've had the hearing, who take that view, that that would have been the best thing to do. But I'm asking really was it unreasonable, was it indefensible for him at that time, believing, if he did, that the indictment was improper, to issue the pardon.

 

LIBBY: Maybe it's just late, maybe it's that we've been here for five hours, but I did not have any participation in this pardon. I'm not quite sure what I can bring to your own judgments of what's reasonable or unreasonable. You know more about it than I know about it. I didn't participate in it, so I'm unclear what it is you think I bring to this discussion.

 

As I've said, I believe, if it were me, I would have made the calls or recommended the calls rather than just acting in the way it was acted.

 

BARNETT: The reason I'm asking the question is that I think the reason we've been holding the hearings is there have been allegations that there was illegal conduct or corrupt conduct or quid pro quos, and that has to be the explanation. There's not an explanation that this was just simply bad judgment. It's not an explanation that the president could have reasonably but reached a wrong judgment.

 

And because of your expertise and experience in the matter, I was asking the questions to help make that assessment, is the only option here that former President Clinton was acting in an illegal manner for illegal and improper motives.

 

LIBBY: I have no firsthand knowledge of whether he acted for illegal motives or legal motives. As I've said, the information available to the defense team was sufficient to create a compelling defense that Mr. Rich and Mr. Green's companies had not committed the crimes for which they were indicted.

 

BARNETT: Mr. Chairman, Mr. Schiliro, who is the minority staff director, would like to ask questions for about another five minutes or so, if that's permissible.

 

SHAYS: I have absolutely no problem with you gentlemen having your 30 minutes. I just will want to ask a question or two, not many, when you're done.

 

And I'll respect the fact that you don't have a member on your side to counter it. I just will make some...

 

SCHILIRO: I'd be happy to give you my time, because I won't take it all.

 

LATOURETTE: You have 18 minutes. Knock yourself out.

 

SCHILIRO: OK, Mr. Libby, let me try to do this as quickly as I can so we can get out of here.

 

I think part of the problem is we're seeking something, and you're trying to avoid, for good reason, getting us what we're seeking. And maybe it's because we disagree or maybe just because we're not communicating. And the reason we're interested in what you think is you're one of the smartest lawyers in Washington. You're probably one of the smartest people in Washington. It's a complicated case; you understand the case much better than I do.

 

LIBBY: That's the first thing said tonight with which I take strong disagreement, actually.

 

SCHILIRO: Well, I mean sincerely. I don't know you personally, but you have a terrific reputation. You made a lot of money on this case--I think you said earlier it was more than $2 million--which means to me, because you're a terrific lawyer, you learned the details of the case, you learned the intricacies of the case. You knew more about this case than probably anyone else in the world.

 

The threshold question for this committee in our first hearing was, as Mr. Barnett was saying, is there any plausible explanation for this pardon on a legal case? And the answer from a lot of members of the committee was that there wasn't. So you become very relevant, because you have expertise in this matter.

 

If you were handling the case, and I know you don't want to deal in hypotheticals, but let's just assume for a second that you were continuing Mr. Rich as a client. If you were handling the case, knowing everything you know about the case, do you think you could have put together a good legal argument for a pardon?

 

LIBBY: If I were handling the case, I probably would not have asked for a pardon.

 

SCHILIRO: You would not have?

 

LIBBY: Probably not.

 

SCHILIRO: Even when you hit a dead end with the U.S. Attorney's Office?

 

LIBBY: That's correct.

 

SCHILIRO: And explain that to me, why you wouldn't have asked for a pardon.

 

LIBBY: I would have sought to have the Justice Department ordered to reopen the case and look at the merits of the case.

 

SCHILIRO: And I think when you did your transition with Mr. Quinn, you fully apprised him of all the details of the case.

 

LIBBY: Correct.

 

SCHILIRO: On both the legal arguments and the situation surrounding the case?

 

LIBBY: This was the fall of '99 and a little bit into 2000, yes.

 

SCHILIRO: And they tried to make headway with the U.S. Attorney's Office in New York and they got nowhere.

 

LIBBY: Correct.

 

SCHILIRO: You stayed on the case, maybe not in an as active way as you had been previously, but Mr. Quinn joined you and other people working on this. The lawyers reached the conclusion that they were making no headway. There was no other alternative but to seek a pardon.

 

LIBBY: I was not...

 

SCHILIRO: You were not part of that...

 

LIBBY: ... participating in that, no.

 

SCHILIRO: ... but that's my understanding of what the lawyers decided. And I assume you agree with that based on the facts as we know them?

 

LIBBY: I take your point.

 

SCHILIRO: That's the testimony we've received from the lawyers.

 

LIBBY: I'll accept that.

 

SCHILIRO: So, when we asked you before about November of 2000, when you were approached, it didn't sound to me at that point that you declined because you thought it was an inappropriate act to seek a pardon in this case. It sounded as if you declined because of circumstances.

 

LIBBY: That's correct.

 

SCHILIRO: Let me make sure I don't misunderstand it then. If you hadn't been in those circumstances, would you have entertained a pardon in this case?

 

LIBBY: I would have considered going for asking for a pardon, yes.

 

SCHILIRO: And so, if we're in that situation, it doesn't sound to me that's exactly what you said before when you wouldn't have sought a pardon in this case.

 

LIBBY: It is fully consistent with what I said before. I would've considered a pardon, I would've considered other routes. And I think in the end, the course that I think would've best served the client was not to go for a pardon but to get the Department of Justice to look at the merits of the case.

 

SCHILIRO: Right. But your client has paid you more than $2 million. Your client has gotten no relief, wants to come back to the United States feels the indictment was flawed. You know the case, and your client is saying to you, "This is what I think is my only alternative." At that point, you've entertained it. Is your testimony that you would've said no to your client at that point?

 

LIBBY: At that point I would've presented to the client the options. What I am saying is there is another option besides going for a pardon. There's an option to try and get the Department of Justice to look at the merits of the case.

 

SCHILIRO: Right, and that's failed. So now...

 

LIBBY: No...

 

SCHILIRO: Well, I think that's the conclusion the other attorneys on the case reached in 2000.

 

LIBBY: Well, the Department of Justice, in the post-indictment stage, never looked at the merits of the case.

 

SCHILIRO: I think the conclusion of the lawyers who were working on this case is the Justice Department was not going to do that. That's why they sought a pardon.

 

LIBBY: I was not present when they made that conclusion. I understand that that was their conclusion.

 

SCHILIRO: Let me try it one last way. And I think I'm not going to get any further, but I'll try it one more time.

 

If you were in a position where the decision had been made--and you were part of the team--that a pardon was going to be pursued--so it wasn't a question of different options, a pardon was going to be pursued, knowing everything you know about this case, do you think you could put together a good legal case for a pardon?

 

I'm not asking you if it's the best option.

 

LIBBY: Yes.

 

SCHILIRO: And if you did that, and you brought it to the president, do you think that would have been a defensible case? I'm not asking from the other side, the prosecution side, I'm talking from the defense side.

 

LIBBY: Yes.

 

SCHILIRO: The last question I have on that is, again, because you know this case much better than I do. You've evaluated, I think, all of the arguments the U.S. attorney made through the years because you had to know your case. In doing that, I assume, the conclusion you reached was your case was stronger than their case which is why you think the case should have been dismissed.

 

LIBBY: Yes, and I believe everyone on this panel could now repeat what I am about to say: Based on all of the evidence available to the defense, that's correct.

 

SCHILIRO: But just on that phrase--and we all can repeat that phrase--is because you're a terrific lawyer, I think you probably tried the prosecution 20 times in your head. You went through. You tried to figure out every piece of evidence the prosecution had. You examined every legal theory the prosecution had. And I think you've reached the conclusion, because you're acting honorably--and it's because, I think, it's your testimony that that case didn't hold up.

 

LIBBY: Yes, and I'm afraid though you speak, though, in the course of your question--I examined every argument that we knew of that the prosecution had. There is a saying in the intelligence world: You don't know what you don't know.

 

We know only what we knew. We knew that the prosecutor had said he had evidence of which we were not aware. I will take him at his word. I'm not convinced that evidence would have persuaded me. But we had been told there were things we did not know.

 

SCHILIRO: Did you see any of our first hearing on the pardon? Did you see when the prosecutors testified?

 

LIBBY: I had seen some of the transcript. I did not watch it.

 

SCHILIRO: Was there anything in their testimony that was new to you?

 

LIBBY: No, sir, but, of course, their testimony was somewhat abbreviated. There were allusions in their testimony that I thought I could guess what they meant, but, you know, I don't know for sure.

 

I have been convinced that if I sat down with them and they laid their cards out and we laid our cards out, that we would win, but I don't know.

 

SCHILIRO: But so I understand, had you been in the position where you were pursuing the pardon, based on everything you know in this case, you think you could have put together a good strong case for a pardon and a defensible case if the president so issued, based on what you know?

 

LIBBY: Yes.

 

SCHILIRO: Thank you.

 

I apologize for using more than the five minutes, but...

 

LATOURETTE: You want to yield back the rest?

 

I thank you very much. And before yielding to Mr. Shays to wrap things up, I can just remember that when I practiced law and we'd try a case and I'd go first, I always thought, "Man, am I doing good," until the other side showed up, and all of a sudden, we had to rethink some things.

 

Mr. Shays, I'd be happy to yield to you for five minutes.

 

SHAYS: I don't know if I'm getting a second wind, but I actually enjoyed the questions our attorneys asked on both sides of the aisle, and I appreciate the responses.

 

LATOURETTE: I don't know if that's a second wind or vapors, Mr. Shays.

 

(LAUGHTER)

 

SHAYS: I do think it's fairly clear that if you are a lawyer, you are an advocate for one side, and you are going to emphasize the strengths of your case and, obviously, minimize the weaknesses that may involve your case.

 

I meant no real disrespect to Jack Quinn in pointing out that I said he couldn't adequately serve both his client and the president properly, because I think in the process of serving his client well, he didn't serve his president well, someone he had worked for.

 

And I look at you, Mr. Libby, and say, you know, why are you here? You should be here and I appreciate your being here and I appreciate your not complaining about being here. You represented Marc Rich with the prosecution. You developed and brought in people with expertise to determine, in your judgment, that he did not owe taxes. And I would tend to believe that you could find experts to take any position, and you found two that made persuasive arguments to you. But you didn't lobby the White House for the pardons, and that's really what we're looking at.

 

And, in my judgment, we got a pretty disappointing view of why these pardons were granted. There was a rush to complete them. There wasn't the proper vetting and so on.

 

But you're here, as, now, a government official, and I just want to ask you this question, and I hope I like the answer, but I may not. I want to know if you left the administration, would you come back to lobby your boss, Dick Cheney, or the president of the United States on behalf of a client, given the unique relationship that you have as the chief of staff of the vice president?

 

LIBBY: I doubt it. I can't be sure, but I doubt it.

 

SHAYS: Would you concur that if you were looking to lobby the White House, and you were hired to represent a certain interest, that your position would be to present that interest as forcefully as you could, even if it meant not disclosing information that might be helpful for the person making that judgment?

 

LIBBY: If I understood your question properly--I think I missed part of it--I do not believe I would every appear before Vice President Cheney or President Bush, under terms in which I would withhold any information from them.

 

SHAYS: Thank you.

 

Thank you very much.

 

LATOURETTE: Thank you, Mr. Shays. And I think that that exhausts any question that anybody could possibly have.

 

I want to thank you, Mr. Libby, and you, Mr. Fink for your patience and your forthrightness with the committee. You were both excellent representatives. Vice President Cheney is lucky, and Mr. Rich is lucky. And we thank you very much.

 

And this hearing is adjourned.

 

[DIVA NOTE:  AND THIS HEARING WAS UNCONSTITUTIONAL]

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