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FindLaw Forum: More disclosure laws won't prevent another Marc Rich controversy By John W. Dean FindLaw Columnist Special to CNN.com

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IN-DEPTH The presidential pardons controversy   • List of pardons   • Pardon documents   • The Clinton Years

(FINDLAW) -- Not since Lyndon Johnson loaded several moving vans with everything that was not nailed down in the White House has a former president earned more protracted flak for bad judgment upon leaving office than has Bill Clinton.

On top of the Clinton list, of course, is his midnight pardon of fugitive financier Marc Rich. That presidential action incited the unprecedented investigation by the U.S. attorney for the Southern District of New York.

Congress continues its own efforts to address Clinton's last moments of mercy. Even Sen. Hillary Clinton, D-New York, has joined Sen. Arlen Specter, R-Pennsylvania, in co-sponsoring his bill that would require people who solicit a president on pardons to register as lobbyists, and require presidents to report gifts made to a presidential library fund. Specter's proposal, however, is less than inspired.

Specter is doing what lawmakers typically do. It is standard congressional practice after an untoward event to propose a law that would prevent a similar recurrence. This is particularly true when the unsettling incident was legal, but which many think should be illegal.

With no real chance of amending the Constitution to preclude presidents from exercising their pardon power, the proposal wisely avoids addressing the power itself.

It focuses on presidential conduct that can be regulated and on the agents of the person being pardoned who likewise can be regulated. The regulation for both is public disclosure of their activities.

Protection through disclosure

Presidential libraries have become presidential memorials. Once they were modest places housing presidential papers for scholars. Now they are great edifices that not only house papers and memorabilia, but also sponsor study institutes, offer endless special programs and support large staffs -- all to promote the self-proclaimed greatness of their presidents.

It was Lyndon Johnson, Richard Nixon, Jerry Ford and Ronald Reagan who ushered in the modern presidential library. All of these libraries need money, lots of it.

Richard Nixon was a president with many sins, yet he never solicited money for his library during his presidency. Because there are no reporting requirements, it is difficult to ascertain what other presidents have done.

It is known that Bill Clinton began thinking seriously about his library while still in office. Largely because Denise Rich (former wife of the pardoned Marc Rich) was one of his library's contributors, Specter's proposed law addresses disclosure of such contributions.

The bill would amend the Ethics in Government Act of 1978 by requiring that the president report "all gifts, pledges, or commitments of a gift aggregating $5,000 or more for the establishment of a presidential library."

It is not difficult to understand why Hillary Clinton favors this law. Besides the fact it does not affect her husband, since he is out of office, it may quiet some of the controversy concerning her husband's actions. Disclosure actually provides protection.

If two people are seen exchanging money in the shadows of a parking garage, they are presumed to be up to no good. Place the same two people in a crowded checkout line of a supermarket, performing the identical transaction, and no one suspects anything.

The circumstances often suggest the misconduct. Politicians have learned that public disclosure can protect everyone.

Targeting lobbyists

Many of the persons who might lobby a president for a pardon cannot be forced to disclose their activities. Congress can do nothing about a prime minister of Israel calling the president of the United States to request a pardon.

A foreign national operating outside the United States cannot be compelled to register as a lobbyist. So there is no way to deal with an Ehud Barak, who pitched Bill Clinton several times on the Marc Rich pardon.

Nor is there anything federal lawmakers can do about persons such as Denise Rich and Beth Dozoretz (friend both of Rich and the president), who lobbied for the pardon.

Neither of these women were hired to lobby, so it is doubtful Congress could regulate their activities without running afoul of the First Amendment, which gives every American the right to petition his or her government. Bill Clinton, as president, was their government, so the right to petition likely applies to protect Rich and Dozoretz's actions.

A person paid to lobby, such as a lawyer, can be forced to disclose his or her activities, and the constitutionality of such laws has been tested and proved. Indeed, Congress has been regulating lobbyists for decades.

The first comprehensive lobbying law was enacted in 1946, and in 1995 it was broadened to cover legislative and executive branch activities. Specter seeks to amend the 1995 lobbying disclosure law to cover pardons.

His proposal, however, will be largely ineffective in addressing his concern about such lobbying.

Remedy too simple

Specter's bill, S. 645, would amend the Lobbying Disclosure Act of 1995 -- which requires lobbyists to register and publicly disclose to the secretary of the Senate and the clerk of the House of Representatives what they are doing, and for whom.

The proposal would make communicating with a president or his staff about "the issuance of a grant of executive clemency [be it] a pardon, commutation of sentence, reprieve, or remission of fine" lobbying activity under the law.

Specter said on the Senate floor that he wants individual such as former White House counsel Jack Quinn, who spent several months lobbying for the Marc Rich pardon, and was paid well for his efforts, covered by the disclosure law.

Specter believes that if Quinn's lobbying efforts had been known (to the public and to the Southern District of the New York, which was kept out of the loop at times), then the pardon would not have been granted.

Specter's proposed change in the law, however, would not give him the results he seeks.

The law requires registration (and disclosure) within 45 days after the first lobbying contact. But that period is far too long.

According to the latest and most detailed recitation of the facts, published in the New York Times on April 11, 2001, Jack Quinn made his first lobbying contact (as defined under the law) on December 13, 2000, when he spoke with deputy White House counsel Bruce Lindsey in Belfast, Ireland. The pardon was granted on January 20, 2001 -- significantly less than 45 days later.

Thus, Quinn -- the paradigm of the lobbyist Specter wants covered -- would not have been covered by the law. Indeed, Quinn would not have had to register under the proposed law until January 28, 2001 -- eight days after the pardon was granted, when President Bush was in office. So President Clinton would not even have had to weather the effects of disclosure while he was a sitting president.

Further, Marc Rich's hiring of Jack Quinn months earlier would not have triggered registration under Specter's amendment -- as long as no "lobbying contact," as the law defines it, was made.

Nor would the strategy sessions during which Quinn worked with his client have triggered the law. These sessions discussed how to get the U.S. attorney in Manhattan to reconsider the prosecution of Rich, and under an exception in the law (which S. 645 does not address) a person is not required to register on the basis of communications with officials regarding "a judicial proceeding or a criminal or civil law enforcement inquiry, investigation, or proceeding."

I raise this anomaly because it is one of many exceptions Specter's proposed law does not address. The activities involved are more complex than the remedy proposed.

Disclosure laws don't work

Indeed, the disclosure provisions of Specter's bill could produce results opposite to those he seeks. As with disclosure laws covering campaign contributions, the idea that disclosure can by itself address dubious (but not illegal) activities is based on a myth.

Disclosure laws rest on the assumption that improper influence peddling, or quid pro quo conduct, cannot prevail in the spotlight of publicity -- the idea that "sunlight is a disinfectant."

This is a naive assumption. It is well known by those who must disclose their dealings with the government, such as major campaign contributors and lobbyists, that no one really polices the disclosed information.

Members of Congress largely ignore the information collected by the secretary of the Senate and the clerk of the House. It is gathered mostly for the media, which may or may not sift through it.

Further, this information has become so voluminous there is little chance such sifting will occur, or if it does occur, that it will be effective in rooting out improprieties and putting them under a media magnifying glass.

In truth, disclosure laws have legitimized a form of official corruption -- sanitizing activities by publicizing them.

Notwithstanding the often sincere protestations of public officials who claim that they are not influenced by hefty contributions, and the glad-handing wheeler dealers who roam the corridors of power, they -- and we -- know better.

It is a deception to believe otherwise, even if most of our public officials live in apparent denial.

Before adding another disclosure law to the ineffective ones we already have, we should find out whether pardon lobbying and contributing to presidential libraries are commonly infected by quid pro quo conduct and rotten pardons, or whether their salutary purposes dominate.

If there is a true problem, then comprehensive legislation should be drafted. Specter's quick fix efforts, while well intentioned, do not really do the job.

John Dean was counsel to President Richard Nixon during the Watergate era. He is now an investment banker in California. John Dean is also a FindLaw columnist.

Copyright © 1994-2000 FindLaw. Printed with permission from FindLaw

Roger Clinton subpoenaed in pardons probe
April 17, 2001
Leading Democrat questions future of House probe of pardons
March 16, 2001
Gallup poll: Clinton popularity at all-time low
March 9, 2001
Lott says it's time to 'move on' in pardons probe
March 6, 2001
Aide denies Clinton considering talk with Specter
March 5, 2001
Tony Rodham says he talked to Clinton about pardon
March 3, 2001

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