Eric Holder will be grilled at his confirmation hearing about his conduct in the Marc Rich affair. But the stickiest problem may be whether he lied in previous testimony to Congress on the matter. This report sets out the issue:

Attorney General-designate Eric H. Holder Jr. told Congress under oath that he had “only a passing familiarity” with the criminal case against billionaire Marc Rich before President Clinton pardoned the fugitive financier in 2001- testimony that is now raising concerns among lawmakers reviewing Mr. Holder’s nomination.

Correspondence with the Justice Department and testimony secured by Congress from other witnesses show that 15 months before the pardon, Mr. Holder met privately with Mr. Rich’s attorney and received a presentation about what Mr. Rich’s defense believed were flaws in the government’s case.

But Holder had plenty of involvement with the Rich pardon request and, therefore, possessed more than “passing familiarity” with the matter. Indeed, he got a briefing on it — directly from Rich’s counsel:

Mr. Holder told the House committee in sworn testimony in February 2001 that he was not “intimately involved or overly interested” in the government’s $48 million fraud case against Mr. Rich, that the investigation “did not stand out as one that was particularly meritorious,” that he “never devoted a great deal of time to this matter” and that it “does not now stick in my memory.”

He also testified, according to a committee transcript, that he had “only a passing familiarity with the underlying facts” of the case and that after New York prosecutors refused his invitation to meet with Mr. Rich’s attorney, former Clinton White House Counsel Jack Quinn, he had “no reason to delve further into this matter.”

Mr. Holder also said he had “no memory” of Mr. Quinn telling him that he would file a pardon request on behalf of Mr. Rich directly with the White House, bypassing the normal Justice Department pardon process.

But public records, including a 467-page House Government Reform Committee report, show that Mr. Holder’s interest in the Rich case surfaced during the October 1999 contacts with Mr. Quinn. At the time, Mr. Rich had been a fugitive from justice since a 1983 indictment in what was described as the biggest tax fraud case in U.S. history.
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The report cited as evidence, among other things, a typewritten note sent by Mr. Quinn to Mr. Holder 10 days before the Jan. 20, 2001, pardon. It said, “Your saying positive things, I’m told, would make this happen. Thanks for your consideration.”

A Nov. 18, 2000, e-mail from Mr. Quinn to his Washington law firm also acknowledged Mr. Holder’s involvement in the pardon process. The e-mail said: “Subject: Eric … spoke to him last evening. he says go straight to wh. also says timing is good. we shd get in soon. will elab when we speak.”

“Assuming the ‘eric’ referenced is Eric Holder, this e-mail contradicts the heart of Holder’s defense,” the House report said, noting that Mr. Holder testified he was “not focused on the Rich pardon until late in the process, at first on January 6 [2001] … and then, not really until January 19 [2001].

“This e-mail indicates that Holder suggested that Quinn file the petition with the White House and circumvent the Justice Department,” the report said. “It indicates that Holder was a willing participant in the plan to keep the Justice Department from knowing about and opposing the Marc Rich pardon.”

In testimony in February 2001 before the Senate Judiciary Committee, Mr. Quinn said he went to Mr. Holder about the Rich case in late October 1999 to “provide him with an overview of the flaws in the outstanding indictment against Mr. Rich.” He said he then wrote to U.S. Attorney Mary Jo White in New York about the Rich case at Mr. Holder’s suggestion, asking that her office re-examine the charges against his client.

“I was denied even a meeting. This left us at an intractable impasse. And so eventually I sought a pardon,” he said. “I personally notified Mr. Holder in his office on Nov. 21, 2000, that I would be sending a pardon application directly to the White House. I told him then that I hoped to encourage the White House to seek his views.

“He said that I should do so, and I did later encourage the White House to seek his views,” Mr. Quinn said. “I hoped the consultation with Mr. Holder by the White House would help me make my case for Mr. Rich, because I believed Mr. Holder was familiar with the charges and with our arguments as to the flaws in the indictment.”

Mr. Quinn also told the committee that he called Mr. Holder on the evening of Jan. 19, 2001, to tell him Mr. Rich’s pardon was receiving serious consideration at the White House, and “that I understood he would, in fact, be contacted before a decision was made.” He said Mr. Holder was consulted and “the position he expressed was important to the ultimate decision to grant the pardon.”

The House report said that as Mr. Rich’s attorneys prepared to file their pardon petition, Mr. Holder “provided pivotal assistance to their effort.”

“After first succeeding in keeping the career prosecutors at the Justice Department from having any input in the Rich pardon, Holder informed the White House on the last day of the Clinton administration that he was ‘neutral, leaning towards favorable’ on the Rich and Green pardons,” the report said. “Together, these actions had a dramatic impact on ensuring that the pardons were ultimately granted.”

So central to the confirmation inquiry will be the very real question as to whether Holder accurately portrayed his behavior to Congress. The President-elect and his advisors have called the Rich pardon the “one mistake” in Holder’s career. But there were, if this information proves to be accurate, two errors: the underlying conduct – and his misleading testimony.

Lack of candor with Senators is the sort of thing that got Alberto Gonzales in hot water — and brought bipartisan calls for him to step down. Unless Holder and the Democrats can square the seemingly direct contradiction between Holder’s claim of “only a passing familiarity” with Rich and a record replete with talks between Holder and Quinn on the merits and progress of the pardon, there may be grounds on which to oppose his confirmation. Really, how can the Senate confirm a nominee for attorney general who lied to Congress?