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Five lawyers who lobbied President Bill Clinton to grant the controversial pardon of fugitive financier Marc Rich will have to turn over documents to the U.S. Attorney for the Southern District of New York, a judge ruled Thursday. Southern District Judge Denny Chin said that former White House Counsel Jack Quinn and four other attorneys who worked on Rich’s pardon application cannot use the attorney-client privilege and the work product doctrine to block subpoenas sought by U.S. Attorney Mary Jo White in the ongoing grand jury investigation into the scandal. Rich and co-defendant Pincus Green have been fugitives from justice since 1983, when they left for Switzerland following their indictment for wire fraud, mail fraud, racketeering, conspiracy, tax evasion and trading with the enemy. Despite repeated attempts by lawyers for the two men to persuade prosecutors to drop the charges, White and her predecessors, including Rudolph Giuliani, insisted that the pair return to the United States to face the charges. White contended in In Re Grand Jury Subpoena, M11-189, that the five lawyers are withholding communications between lawyers even though the lawyers were only talking about information obtained from a non-privileged source, such as a third party. She invoked the “fugitive disentitlement” doctrine, claiming that Rich and Green cannot use the protection of the work product doctrine because they are fugitives and never considered returning to the United States. White also said the work product doctrine does not apply because Rich’s lawyers were acting primarily as lobbyists, and not providing traditional legal services, when they contacted the White House. And even if the conversations were considered by Judge Chin to be work product, prepared in anticipation of litigation, the government had shown the “substantial need for the materials” needed to overcome any work product protection, White argued. In response, Judge Chin said first that the “process of obtaining a pardon is not adversarial in nature.” “I hold that the disputed evidence is not entitled to protection for work product, for the materials in question do not reflect the mental impressions, thought processes, and legal theories that the work product doctrine is intended to protect,” Judge Chin said. Judge Chin rejected White’s first argument, finding that the fugitive status of Green and Rich does not bar them from invoking the work-product doctrine. The judge said that “no court has addressed this question in the work product context and the two courts that have considered the fugitive disentitlement doctrine in the context of the attorney-client privilege declined to apply it.” But considering the work product argument “on the merits,” the judge said the pair’s fugitive status was “highly relevant,” and concluded that “Rich’s reliance on the work-product doctrine is misplaced because the process by which Rich and Green sought their pardons here was not an adversarial one.” The judge said further: “Rich is not entitled to invoke the work product doctrine because once the final efforts to persuade the Southern District to drop the charges had failed, he and his advisors changed tactics and the Marc Rich lawyers started acting primarily as lobbyists.” LACK OF NOTICE In a move that angered members of Congress, as well as White and prosecutors who had worked on the Rich case, Quinn has been accused of trading on his friendship with President Clinton to win a pardon in a manner that skirted the traditional process. “Neither the Southern District nor the Pardon Attorney at the Department of Justice was given notice. Although Quinn did contact [Deputy Attorney General Eric] Holder, he did so not to give ‘notice’ of the Petition to the Department of Justice, but to enlist Holder’s support for the Petition.” Judge Chin said that Rich had argued that the pardon proceedings were not ex parte because he was not required to give notice to the Department of Justice or the Southern District. “In particular, he argues that the executive clemency regulations do not apply to pardon petitions submitted directly to the White House or to the petitions submitted by a person who has not yet been convicted,” he said. “These arguments are rejected.” Under 28 C.F.R. �1.1, pardon petitions “shall be addressed to the President … and shall be submitted to the Pardon Attorney.” Judge Chin said that “No exception is made for petitions submitted ‘directly’ to the White House. If Rich’s interpretation were correct, every pardon applicant could circumvent the Department of Justice by submitting a pardon petition ‘directly’ to the White House. And although the regulations do not specifically address pardon petitions submitted on behalf of individuals not yet convicted, Judge Chin said that the language of Section 1.1 suggests it applies to all pardon petitions. “It makes no sense that individuals who seek a pardon before they are convicted are free to follow whatever procedures they wish,” he said. “If the guidelines set forth in the regulations had been followed, the Petition would have been submitted to the Pardon Attorney, the Department of Justice would have caused an investigation to be made, the Southern District would have been consulted, and the proceedings would not have been ex parte.” While Quinn may be an “excellent” attorney, Judge Chin said “clearly, he was not hired for his ability to formulate better legal arguments or write better briefs.” “The public relations consultants and media experts here were not helping the lawyers to prepare for litigation,” he said. “It was the other way around, as the lawyers were being used principally to put legal trappings on what was essentially a lobbying and political effort.” In the end, Judge Chin said that “Conversations between lawyers where one lawyer is merely relaying factual information, such as a conversation with a third party, to another lawyer are not privileged (or protected by the work product doctrine.)” And, he said, “strategies for persuading the President to grant the petition are not privileged.” U.S. Attorney Mary Jo White and Assistant U.S. Attorneys Evan T. Barr and Jonathan N. Halpern represented the government. Laurence A. Urgenson of Kirkland & Ellis represented Rich. Audrey Strauss of Fried, Frank, Harris, Shriver & Jacobson represented attorney Kathleen Behan. Peter Chavkin of Stillman & Friedman represented attorney Robert Fink. Frederick P. Hafetz of Hafetz & Necheles represented Quinn. John S. Siffert of Lankler Siffert & Wohl represented attorney G. Michael Green. David Ellenhorn and Jonathan Lupkin of Solomon, Zauderer, Ellenhorn, Frischer & Sharp represented an unnamed attorney in the matter.

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