-Caveat Lector-
THE CLINTON SCANDALS
Proving Bribery Isn't Easy
This is a crime you could almost admit to and still get away with.
BY PAUL A. ENGELMAYER
Friday, March 2, 2001 12:01 a.m. EST
Time and again, prosecutors in quest of Bill Clinton have seen
their quarry elude them. This time, can federal prosecutors
investigating Pardongate make a bribery case against him stick?
Probably not, if experience is any guide. There is no more
tenacious prosecutor than Manhattan U.S. Attorney Mary Jo White,
and her staff is second to none. But, as any public-corruption
prosecutor will attest, few charges are harder to prove than a
historical (already completed) bribe scheme. Bribery cases
require prosecutors to prove that the public official accepted a
thing of value in exchange for his official acts. That is a
formidable burden. As long as there is a reasonable doubt that
the official acted for any other reason, he cannot be convicted.
When prosecutors are alerted to a bribe scheme in midstream, they
can, and often do, prove the necessary quid pro quo by capturing
the exchange on tape. The Justice Department has used this
technique to good effect in numerous "sting" operations in
corruption cases, most notably the Abscam prosecutions of
congressmen in the early 1980s.
But when an alleged bribe scheme is over by the time the
investigation gets under way, proving a quid pro quo is much
harder. The government typically must secure the cooperation of
one party to the bribe scheme--usually the bribe-payer--to
testify as to the agreement to trade money or other things of
value for official acts. For example, the 1980s testimony of
Wedtech officials about payoffs they had made to public officials
in exchange for official acts resulted in the convictions (under
the closely related extortion statute) of two congressmen and
other local officials.
In the case of Mr. Clinton's pardon of fugitive tax-evader Marc
Rich, prosecutors already have proof of a "quo" (the pardon) and
a "quid" (huge contributions to the Clinton presidential library
by ex-wife Denise Rich). Their challenge is proving the elusive
"pro"--that the pardon was given in exchange for those
contributions, or other things of value.
Absent confessional testimony by a party to such an alleged
scheme (Ms. Rich or her friend Beth Dozoretz, for example), the
"pro" realistically can't be established, because Mr. Clinton can
advance a plausible explanation for each individual pardon. In
his recent New York Times op-ed piece, Mr. Clinton stated that he
had pardoned Mr. Rich because the prosecution had been unfair,
and because America's Israeli allies had lobbied for the pardon.
While many have questioned Mr. Clinton's insistence that the
pardon was unconnected to Ms. Rich's donations, his story is not
so incredible as to leave no explanation other than a quid pro
quo.
Indeed, even if Mr. Clinton admitted he had bestowed the Rich
pardon out of appreciation for Ms. Rich's past generosity--a
plausible scenario--that would still not establish bribery.
Prosecutors would still have to prove that, before the donations
were made, Ms. Rich and Mr. Clinton had reached an understanding
that in exchange for her donations, he would later act to her
benefit.
Prosecutors face the same challenge in proving bribery in
connection with Mr. Clinton's other controversial 11th-hour
pardons: to the four Hasidic "New Square" men convicted of
bilking the government of some $30 million (a pardon allegedly
granted in exchange for delivering votes to Hillary Clinton), or
to the two convicts represented by Hugh Rodham (allegedly in
exchange for a $400,000 contingency fee).
How, then, can we expect prosecutors to proceed in probing these
events?
First, expect a full-bore investigation of Ms. Rich, Mr. Rich,
Ms. Dozoretz, and others who pressed for other controversial
pardons. Prosecutors will subpoena their bank and phone records,
tax returns, and perhaps obtain testimony from their accountants.
A close examination of their political contributions and finances
could conceivably turn up campaign-finance, income-tax, or other
irregularities separate from the pardon issue. If an
investigation turned up criminal exposure on Ms. Rich's part, for
example, prosecutors might try to use that leverage to secure her
cooperation with the pardon probe, in exchange for leniency. The
civil lawsuit filed yesterday by New York State, to collect $137
million in unpaid income tax from Marc Rich, won't be enough to
put pressure on this billionaire.
Second, if the facts support them, expect prosecutors to explore
lesser charges, such the federal gratuity statute, as an
alternative to proving bribery and as a means of putting pressure
on Ms. Rich and other pardon-seekers to cooperate. While the
gratuity statute carries a two-year maximum sentence--in contrast
to bribery's 15-year maximum--its proof requirements are far less
daunting. To prove a gratuity, prosecutors must merely show that
a thing of value was given to the public official either as a
reward for a specific official act, or as an incentive to carry
out such an act. As federal courts have explained, to prove a
gratuity there need not be a mutual understanding between the
gift-giver and the public official. The gift-giver merely must
have sought to increase the likelihood that the official act
would be performed.
Suppose, for example, that Mr. Rich (through his ex-wife)
channeled large sums to the Clinton library (or gave the Clintons
other things of value, such as furniture) around the time of the
pardon or pardon request. Further suppose that he had made no
comparable gifts in the past. That would be strong evidence of a
criminal gratuity. Similarly, expect prosecutors to aggressively
question colleagues and friends of pardon-seekers as to what
explanations they were giving for their beneficence towards the
Clintons in the period leading up to the pardon.
Finally, expect prosecutors to keep a sharp lookout for
obstruction of justice or grand-jury perjury, and to vigilantly
investigate and prosecute any such misconduct. As the prosecutors
well know, it is often not the underlying alleged misconduct, but
the cover-up in response to it, that lands public officials and
their coteries in trouble.
Mr. Clinton has acknowledged evasiveness before in response to
questioning under oath. If asked by federal prosecutors about
Pardongate, he can expect far more skillful questioning than he
has encountered before. If caught in a lie in that forum, his
troubles will just have begun.
Mr. Engelmayer, an attorney in New York, is a former chief of the
major crimes unit at the Manhattan U.S. attorney's office.
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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