tv House Hearing on a Presidents Clemency Power CSPAN February 9, 2021 9:12am-11:22am EST
promising vaccine candidate could be approved by the fda and soon on the way to us, perhaps even in the coming weeks. and this one is actually being manufactured right here in maryland. we will continue doing everything in our power at the state level to utilize every dose we are given as thousands of heroes all across the state work around the clock to get more shots into the arms of our most vulnerable citizens just as soon as they are made available to us. and i want to assure you that we will not rest until vaccines are available to every single marylander who wants one. >> we're live this morning with a hearing on the president's clemency power and when it can be used under the constitution. a house judiciary subcommittee is hosting. you're watching live on c-span2. >> before we get to the committee i'd like to express
to the chair and all the members of the committee and the congress sadness at the passing of representative wright. he served for a short period of time, but he was a gentleman and we will miss him and we mourn his loss and i would like for us to have a moment of silence in his honor. without objection. [moment of silence] thank you. thank you. at this point, mr. johnson, if you would like to lead us in prayer regarding the passing of our colleague, you'd be recognized. >> thank you for that, mr. chairman, very much appreciate it. our colleague chip roy who joins us this morning was on an
interview and knew mr. wright as as well, and he was a good man and good public consistent to the country. pray, heavenly father, thank you for this day and the work you put before us and all of our colleagues, we're reminded this morning of the preciousness of life and how fleeting it is. i pray that representative wright's example will be one that signs for all of us, he was truth committed to you, to his family, to his country and all who serve. let that being a shining example for us and let us remind us to value one another and that life is short and we make the most of it. so we pray for the wright family, all those involved. hits constituents, all affected and our colleagues as well and that you bless and continue to bless him and them and the work of our hands. pray all that, i pray in jesus'
name, thank you mr. chairman. i yield back. >> well done. i'll go back to the committee. welcome everyone here on constitutional means to prevent abuse of the clemency power. before we begin, i'd like to remind members new and returning that we have established the e-mail address and distribution list dedicated to circulating exhibits, motions and written members that members might want to offer as part of our hearings today. if you'd like to commit materials, please send them to judiciary email@example.com and we'll distribute them to members and safe as quickly as possible. i'll recognize myself for an opening statement. i am pleased to convene the first hearing of the subcommittee on the constitution, civil rights and civil liberties of the 117th congress. i look forward to once again working with the gentleman from louisiana, ranking member mike
johnson, as other members of the subcommittee on many pressing issues that will be addressing us in the months and years to come. while we will no doubt have sharp disagreements from time to time, it is my hope we'll always be able to disagree in the guardrails of mutual respect as colleagues. each of us was sent here to represent our constituents faithfully and to the best of our ability. we begin this congress by picking up on a topic that we devoted two hearings to in the previous congress, the proper scope and use of the president's constitutional power to grant clemency. the clemency power is outlined in article 2, section 2 of the constitution and it rightly broad. clemency power's purpose is to act as a safety valve for our criminal justice system to correct system injustices and sure that mercy tempers excessively harsh punishment. there are few things that are more fiercely urgency than to
grant clemency for the thousands who suffer from the burden of excessive and unrest imprisonment or the consequences and not coincidentally these are born by people of color. i've long been looked at the modern presidents beginning with the 1980's on so-called war on drugs which really goes back to the 1970's. 2013 to 2014 i wrote four letters to then president obama and then attorney general holder, urging the president, the attorney general, to become more involved to grant more clemency petitions, and i offered two opinion pieces on the subject calling for more clemency grants. in fact, i had written the president early in his second term and told him i had three c's. cuba, cannabis and commutation.
it was maybe somewhat effective, but he was a little shy on clemency. i also wrote to president trump to commend him for commuting the sense of alice murray johnson and encouraged him to do more than his predecessor who did issue a great number of clemency probably most of anybody in recent time, but far from the amount of people that deserved them. and i asked him if he would do more in granting clemency to many cases like that of miss johnson's. its my hope that president biden will be a leading example of how clemency power could be more effectively used especially among those who may be more deserving, but pleas have not been heard. and the subcommittee will look at more expansive use of the clemency power and i hope will be bipartisan because we're talking about freedom and we know both caucuses appreciate freedom. considering what is the proper scope and use of the clemency
power, there's another matter, whether there are or should be limits on the power for self-serving or corrupt purposes rather than an act of mercy. presidents of both parties have issued controversial pardons which raise the questions which have been longstanding interest of the subcommittee. such are not in keeping in the purpose of the clemency power. in 2019, the question whether a president can issue a self-pardon. and consistent among the witnesses in that hearing, including one requested by the majority, was that on balance, the constitution likely would prohibit self-pardon. and during the nixon administration, department of justice, office of legal council included self-pardon for the unconstitutional because of the basic principle that no one should be a judge of his or her own case. the questions about the proper scope of the clemency power took on greater urgency during the recent presidency. no president's permitted to
abuse the power of his office to obstruct the law enforcement investigation and yet the matter in which president trump used the clemency power throughout his term raised the question may be doing that for himself and allies. and robert mueller into the possible interference in the 2016 election, president trump dangled the possibility of pardon of witnesses who refused to cooperate. specifically paul manafort, michael flynn, national security advisor and roger stone, his senior campaign advisor. ultimately he would pardon all three of these individual after convictions for serious criminal offenses stemming with the mueller investigation in his final weeks office. in addition president trump used the clemency power in self-serving way as her political or personal connections to him. that seemed to be the thread
rather than the crime and the sentence. this included clemency for four former republican members of congress, one of whom i was personally close to, nevertheless they had been convicted of various criminal offenses ranking from bribery, and insider trading to misuse of campaign donations. charles kushner, his son-in-law's father and former chief political strategist steve bannon was awaiting trial on scheme to fund the wall on the u.s.-mexico border were also pardoned. president trump also reportedly discussed pardoning himself and his children during his final days in office. we presume he didn't do that, but we don't know that for a fact because there's something such as a secret pardon which we should address today. and i introduce a proposed constitutional amendment that would expressly prohibit presidents from granting
clemency to themselves, prohibit clemency grants to certain classes of people like the president's family members to the third degree, administration officials, paid campaign staff or any person or entity who committed an offense directed by the president. it also has a catch-all provision making any pardon invalid which was issued for corrupt purposes. i'd introduce similar resolutions in the previous congress. while this proposed amendment precludes clemency for certain recipients, i would like to talk about ways to include the clemency pro is he is, transparency and the timing of pardons and commutations. specifically i'd like to hear the witness's views about requiring public notice of pardon, get around the issue of possible secret pardon, or commutation that might be issued before election day. i think mr. --
had suggested some type of prohibition before the election -- or after the election, if it was a secret pardon, it wouldn't be known. that would have to be addressed. so notice of public pardons and public has notice obviously in a presidential year and probably only in the first term, requiring more transparency to avoid secret pardons and revising the system in which clemency decisions are made, removing, curtail or amending the role of the department of justice with respect to the clemency process. this will not be our last look at the clemency power in this congress as the subcommittee will continue to gauge on this issue from a criminal justice reform perspective. i thank our witnesses for being here and i look forward to a lively discussion. now i would like to recognize the gentleman from louisiana our ranking member mr. johnson for his opening statement.
thank you, mr. chairman and appreciate that very much. our article 2 section 2 of the constitution includes very clear language and of course, it said in relevant part, quote, the president shall have the power to grant, reprieves and pardons for offenses against the united states except in cases of impeachment, unquote. some presidents of course have used this power more than others. they do this based upon their own conceptualization of justice and respective judgment and most of the country that's always respected that. for example, president trump issued 237 total pardons and commutations during his term of office in four years. 237. by comparison, president obama issued 1, 927 pardons and commutations. president bush issued 200 and president clinton issued 457. so the numbers vary.
president obama issued pardons or commutations many of which were very controversial. he, for example, included chelsea manning who endangered by leaking classified information. and a top leader and terrorist and his joint chiefs of staff, vice-chairman cartwright who lied to investigators. lewis scooter libby. president clinton issued pardons and commutations for his own brother for drug related offenses, to fugitive, marc rich. to kraai cia director and several in his own administration. and most recently president trump with roger stone and michael flynn. and all of these presidents
issued pardons for many who were controversial to the other party. and throughout history the majority introduced the abuse of power prevention act last congress. the republicans explained that the bill was unconstitutional in a committee markup last july, nevertheless, the committee favorably reported the bill on a party line vote. additionally the chairman recently introduced the proposed constitutional amendment to narrow the pardon power. i have several significant concerns with this, many of us do. it's vaguely cleared, pardons issued for a corrupt purpose shall be invalid. the problem there is it's pretty vague and broad language there's no framework or standard what amounts to a corrupt purpose. i'm sure that the majority issue that several pardons were
served for a corrupt purpose while many republicans would say it was motivated prosecution. and this is precisely why the founders structured the pardon clause. alexander hamilton argued, when the defense proceeded from causes inflamed the resentment of the major party may they be found obstinate and inexorable, and james madison similarly argued that legislative involvement in the pardon power would be improper because numerous bodies activated by passion or might in the moment of vengeance forget humanity. and narrow pardon power during the constitutional convention, that made the majority of
advances today, for good reason that was soundly defeated. the power is vested in the president as was designed in the constitution. for a president to exercise as they see fit, based upon their personal judgment and notion of justice. i thank the witnesses for appearing before the subcommittee and hope we can have a conversation. with that i'll yield back. >> thank you, mr. johnson. unanimous consent is asked for mr. nadler statement in the record. i would ask for that. without objection, his statement will be entered into the record. the ranking member, mr. jordan, is present and if he chooses to make a statement, he can recognized at this point. >> mr. chairman, i'm fine. thank you. >> all right, thank you.
well. we'll go to witness introductions. we welcome our witnesses and thank them for participating in today's hearing. i will now introduce each witness and after that introduction will recognize the witnesses for his or her oral testimony. please note that your written statement will be entered into the record in its entirely. accordingly ask to summarize your testimony in five minutes. in the absence of the proverbial timing light, green, yellow and red, i will note orally when five minutes have elapsed and bang my gavel, otherwise known as a miniature louisville slugger bat. there will be a timer on the screen so please be mindful. before the testimony i would like to remind the witnesses you have a legal obligation to provide truthful testimony and answers to the subcommittee. any false statements you may make today prosecution, 1001 title 18 of the united states
code. our first witness is carol lynn frederickson, a distinguished visitor of practice at george tech university and senior fellow for justice at new york university school of law. she teaches courses on the legislative process, constitutional law and democracy. she was previously the president of the american constitution society for law and policy. she's also had an extensive career serving the government at special assistance of legislative affairs during the clinton administration, chief of staff to the senator maria cantwell and the deputy chief of staff for senator tom daschle. and served as a law clerk for the honorable james l oaks for the u.s. court of appeals for the 2nd circuit. and received her jd from columbia university school of law and was a scholar and the editor of the law review.
and received her summa cum laude from yale university. >> thank you so much, mr. chairman. i'm pleased to have your opportunity to appear here today for this topic. as was said, the president has the power to show mercy. however, the breadth of this power has made it susceptible for use. before leaving office in 1992 president george h.w. bush pardoned secretary of defense casper weinberger and five others. and president clinton's marc rich, indicted for fraud and the ex-husband to a major donor to the hillary clinton campaign. and president trump has gone
further. on his final day trump pardoned 74 people and commuted sentences of others. including one defrauding medicare to the tune of 75 million dollars. the pardon power was intended to be a benevolent power, but there are limits on the excess, it only extends to federal crimes. it may not be used to obstruct justice and a self-pardon is constitutionally suspect. congress could, of course, reform the pardon power by constitutional amendment. and as the chairman's proposal would do, it would limit the president's pardon power to grant such a pardon to himself, his family, his administration officials or campaign advisors. and would prevent pardons for conduct undertaken for a direct and significant personal benefit of the president, his family, officials, or for crimes committed in cooperation with the president. the chairman rightly states that the power often operates
like a get out of jail free card more than a grant of mercy for those who have been clear victims of injustice. congress could also reform the pardon power by creating statutory limits. there is a bill introduced by representative adam schiff which would propose two important reforms. in cases of covered offices, his bill would require the doj and the president provide committees with materials related to the prosecution, as well as the pardon and strengthen the bribery statute by clarifying the application to the president and vice-president, that it's an official act to grant the pardon or commutation and that such a grant is a thing of value. thus the amendment or the bill would ensure that any offer of a pardon, or a pardon itself would be a criminal act if part of a corrupt exchange. and it would also declare presidential self-pardons invalid. the strong reason to believe this legislation would
withstand constitutional challenges. it's widely accepted that congress may impose criminal penalties on intending to prescribe. since they do not circum describe-- and doj has issued two opinions that are consistent with this understanding. in october, 1995, there was an opinion that stated the application of the bribery statute raises no separation of powers, question let alone a serious one. according to olc, the constitution has no power with the priess to receive bribes and specifically forbids increase for compensation while service in office which is what a prescribe would function to do and because the constitution expressly authorizes congress to impeach the president with bribery. with respect to a president's pardon of him and herself as well-known in 1974 an olc
opinion that stated that such a pardon is illegitimate. there's another bill meriting consideration authored that would require the president have the recipient date and the full text of each pardon granted. even if not for the reason the pardon could be granted such legislation would bring public attention to ill considered grants. another area where congress with help police the pardon power is its oversight function. after president clinton pardoned marc rich congress engaged in a thorough and bipartisan investigation. although no criminal charges were issued, congress did uncover some highly questionable behavior, including efforts by president clinton's half brother and brother-in-law to lobby for pardons in exchange for pay. as has been noted the president's power is an awesome power, a power for good. it is often used however--
it is not often enough used for good and is times used in a way that's abusive and congress is right to take up the task of restoring the pardon to its status as a benevolent power. thank you. >> thank you, ms. frederickson, you've obviously been here before because you know how to do five minutes on the nose. our next witness is miss hobart-flynn. and common cause is a nonpartisan grass roots organization upholding the values of democracy working to hold an open and accountable government and equal opportunities for all and people's voices in the political process. miss hobart-flynn has been with common cause for the past 28 years, in that time she's worked to expand the efforts with respect to election administration reform, curbing the outside influence of big
money in politics and ethics and accountability reforms. she has written and spoken frequently on democracy issues, including about influence of money and politics, voting rights and ethics and conflict of interest reform for elected officials. miss hobart-flynn, you're recognized for five minutes. >> new, chairman cohen for inviting me to testify at this important hearing. thank you. i am pleased to be here as the president of common cause a national nonpartisan organization with more than 1.5 million supporters working for an open and accountable democracy. the pardon power is a potent tool to advance justice. unfortunately it can also be used to obstruct justice. this warrants congressional action and i hope my testimony today will help you with your task. first i must say that no discussion about executive
clemency is complete without first acknowledging the powers of our criminal justice system. systems of mass incarceration, violently wrenching black and brown people out of their homes and dumping them in steel cages at alarming rates. racist public policies continue to have disparate inequity on black and brown people in community. until passes, roots out racism, classism, xenophobic practices in all levels of the justice system, we must encourage the president to use clemency as a tool to chip away the injustice as president obama did during his term and i discussed further in my written testimony. but elections have consequences and including those for seeking clemency. many of president trump's pardons were his wealthy friends, war criminals, corrupt insiders and others who
obstructed justice by lying to congress and law enforcement. this is a challenge we've seen with some other presidents. more importantly we believe that president trump abused the pardon power to show that he and his associates are above the law and president trump signaled intent to award obstruction and subvert accountability to further his own political power. his efforts were 0 open and notorious. special counsel mueller detailed that in his report many of the president as acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons took place in public view, end quote. among those pardons michael flynn who pleaded guilty to lying in the fbi. his former campaign chairman, paul manafort who encouraged to lie on his behalf.
roger stone, and foreign election interference, lying under oath and witness tampering. there are also serious questions how the pardon power could be used for illegal bribery for pardon schemes. the department of justice was investigating. there are congress must rein in the abuse of pardon power. the resolution by the chairman put a number of strong proposals-- pardons issued for corrupt purposes. even without a constitutional amendment congress has the power to otherwise check the abuse of the pardon. in the 116th congress included in the protecting our democracy act provides important oversight, transparency, and anti-bribery and self-dealing protection.
we urge this reintroduction and passage this congress. in the meantime, congress should investigate whether president trump pardoned associates and share what it learns with the american people. congress should explore the idea of independent clemency boards to review clemency petitions and advise the president. this could eliminate biases inherent in the current system which often relies on prosecutors and the department of justice to serve as a check on their own prosecution. members of such a clemency board should reflect our country's diversity and represented as stakeholders inside and outside of the justice system. mr. chairman, i believe that democracy is resilient, but it takes work to ensure it lives up to its promise. it will continue to be stress tested. i urge the committee to take the steps necessary to advance justice for all, and protect the rule of law and end the
racial inequities in the legal system. a comprehensive approach. thank you, mr. chairman and i look forward to the committee's questions. >> thank you very much his hobert flynn and appreciate your service. and our next witness at professor of college of law in eastern texas, specializes in constitutional law, law and technology and the study of the united states supreme court. he is the author of 59 published articles, three books and numerous amicus briefs and an editor of a case book on constitutional law. he received his jd magna cum laude from george mason school of law, articles editor of the law review. he had received his magna cum laude from pennsylvania state
university. and he was clerk for the 6th circuit and tim gibson from pennsylvania. professor, you are recognized for five minutesments thank you, chairman cohen, ranking member johnson, thank you for inviting me to testify. my name is jack black and i'm a college professor at houston. people often think that they have a monopoly. they don't. and-- here we will discuss the constitutional need to prevent abuse of the clemency power. in my brief hoping remarks i'd like to make three primary points. first, i'll discuss the important purpose of the pardon power, second, i will proposed statutory regulations of pardon power and third, i will talk of an hr4, a proposed
constitutional amendment that would limit presidential clemency. today's people often view the pardon power as error correction. for example, the courts made an error imposing injustice sentence. and that the prosecutors had an injust charge. clemency could serve a greater purpose. in 74, alexander hamilton quoted principles to the pardon power, restoring the tranquility of the common-law. pardons not only help individuals. presidents issue pardons to advance broader public policy. some of the most famous pardons in american history served its purpose. president washington pardoned people in the rebellion. president jefferson pardoned those in under the sedition act. after the war, president johnson.
in each case the president used his pardon power to pursue the common good as he saw it. this brings me to my second point. last summer this committee parked up abuse of the pardon prevention act. i criticized this bill in a post i co-authored with my colleagues, was elector at the university of department of law in ireland and i'll submit that post for the record. in short, the proposed bill would alter the presidency such that he would now second guess his official action for fear of prosecution. congress should not empower federal prosecutors to the power of the criminal process, to dictate what the public interest is. third, this committee's considering hr4, a proposed constitutional amendment that would limit whom the president can pardon. i oppose this amendment. it attempts to constitutionalize a single conception of the public
interest. what is and is not a proper pardon. the public interest is always contestable because no one has the institutional institutional what is the public good. the and the president shall have the greatest latitude to issue pardons precisely because the president should have the greatest latitude to pursue what he sees as the common good. limiting the president's power to issue pardons limits the president's power to promote what hamilton referred to as the tranquility of the commonwealth. this amendment should not be adopted. thank you for your time and i will be happy to answer any of your questions. >> thank you, professor, appreciate your testimony. we now would like to recognize our next witness and i'm going
to have to ask you to help the pronunciation of your name. is it natvali? professor, is that correct? i'm going to presume it's correct. so our next witness, i've seen him on television a thousand times, well, dozens of times and i never get his name quite right. clinical associate professor of public service, clinical associate professor of history and-- new york university. focuses on national security and intelligence policies and international history and presidential history. he served as a consultant to the 9/11 committee and recently authored a book "impeachment in american history", and an article titled "trump's pardon made the unimaginable real", and at the richard nixon museum
in yorba linda, california and i'm thinking an expert on president nixon history. and johnson hopkins school of studies and ba with a history from yale university. professor, you are recognized for five minutes. >> i wish to thank the chair, mr. cohen, the ranking member, mr. johnson and members. house judiciary committee, subcommittee for the privilege of testifying for you today. concerns about the breadth of the president's clemency power and the desire to in some way reform it are not new to this moment in our history. it is not solely a product of these deeply partisan times. it is not an unprecedented knee jerk reaction to the conduct of our 45th president. according to fordham university
law school's democracy and the constitutional clinic, on 4 # separate occasions since 1974, members of congress from both parties have introduced legislative proposals designed in one way or the other to modify the president's use of executive clemency. and over half of these initiatives were introduced before the year 2001. indeed, 20 years ago almost to the day, this subcommittee held a hearing on the presidential pardon. the catalyst then was concern and disappointment on both sides of the aisle in how and to whom president clinton had issued 140 pardons and 36 commutations on his final day in the white house. most notoriously one to marc rich, a fugitive facing criminal prosecution for tax evasion, his former wife was a
donor to the clinton library. all of the panelists two decades ago cautioned this subcommittee not to amend the constitution, reflecting that the clinton pardons would be an abberation because of the criticism they inspired. quote, i very much doubt that future presidents will need to be restrained in their use of pardon power, one argued, given the final clinton grant. i quote our distinguished predecessors with humility. who knows how well today's it many will age in 20 years, let alone the rest of us. but i think i can say as a historian that history can only act as a deterrent to bad behavior if we all know it. the last few months, let alone the last 20 years, suggest at least to this scholar, that we were far too optimist particulars about presidential pardon behavior 20 years ago.
the clinton pardons should have led to concrete federal corrective action. today i will leave most of the suggestion of legal precedence to my fellow panelists who are lawyers. perhaps my final value to you could be in sharing history the perils of unreformed clemency power and how a few presidents, one of whom later became chief justice of the supreme court, looked at the matter. the only president to have joined the supreme court after leaving office of course was william howard taft and there for fore, he's a unique witness looking at the perspective of 1600 pennsylvania avenue and that of the supreme court. in a book that he wrote as a law professor before he came back to federal service, when he was appointed to the court, he wrote, the duty involved
with the parting power is a most difficult one to perform because it's completely within the discretion of the executive and is lacking so in rules or limitations of this exercise. the only rules he can follow is he shall not exercise it against the public interest. when he became chief justice he had to look at a case that involved contempt of court. the question that was raised was, can the pardon be used in a way to protect those whose actions threaten our very system of justice and he concluded, yes, the pardon power is unfettered, but, he added, there is always the possibility of impeachment as a corrective action, as a deterrent. my belief in the need for corrective action is founded on what i learned about our nation's 37th president, richard nixon, from publicly available materials at the
nixon library when i was director. in my prepared statement and our questions perhaps, i will detail or discuss the cynicism and the lawlessness that attached to president nixon's approach to the power. the dangling of pardons not only became part of article one that was passed by your committee in a bipartisan matter in 1974, but no doubt led to perjury. therefore, even regardless of our 46th president, the nixon precedent alone is an argument for not allowing this power to be unrestrained, particularly in a partisan age where the tool of impeachment, i would argue is no longer as much of a deterrent on bad pardons as our founders, founder who lived in a pre-partisan age assumed it would be. thank you for your time, i appreciate your questions.
>> thank you, professor, appreciate you being with us and your life's work. we'll start with questioning now and i'll take the first round of questions and we'll have the five minute rule and i'll recognize myself for five minutes. first, i'd like to ask miss hobert flynn, according to your testimony, trump's clemency grants the appearance and reality of a two track justice system, one for the president's associates, and another one for everyone else. why is even the appearance of impropriety in the granting of a presidential clemency so dangerous to our democrat sick order and the rule of law generally? >> thank you. perfect question. you know, one of the challenges is that we see the actions of our president can have real impact and it can undermine people's view of government.
one of the things that i think distinguishes president trump's pardons from those of his predecessors, including, you know, pardons that are granted to the wealthy and well-connected, we saw other presidents do this, was the challenge around, you know, many things that happened during his term. he dangled pardons as a way to signal that he would excuse anyone who refused to cooperate with the mueller investigation and reward anyone willing to lie to them. and he did just that when he pardoned mike flynn, paul manafort and roger stone. as were touted in special counsel mueller's report, the cooperation with the mueller team and stating slipping, and slipping was not fair and
outlawed. president trump that it was very brave that he did not flip. and paul manafort, trump said it was never discussed, why would i take it off the table. and rude giuliani -- rudy giuliani raised the possibility of a pardon, and he said when the whole thing is over some things might get cleaned up with presidential pardons. these kinds of actions, raise the specter that the president is above the law and can use something like the tool, the presidential pardon in ways to help himself and that is not what the founders thought of when they were talking about the pardon. the power of the pardon is extensive, but it needs to be
viewed in the context of other traditions of the constitution that require the president to uphold the law and the constitution. so, this is not a tool to put his own, you know, his own worries about how he could be judged in the mueller investigation in terms of russian interference. >> miss hobert flynn. >> and underlying the view of government. >> let me go to miss frederickson though you'd be as good a witness for this. the appearance of conflict of interest is important and professor blackman said that certain changes shouldn't be constitutionalized. >> aren't there certain classes of people, miss frederickson,
who would have an inherent conflict, family members or close associates, destroy the public's believing in the integrity of democracy and equal justice for all? >> welcome, i think that's absolutely true, mr. chairman. that there are certain classes of people for whom the grant of a pardon raises immediate questions about conflicts of interest, self-interestedness, and lack of public interest. the -- as chief justice marshall said in 1833, the pardon power is supposed to be an act of mercy. that's the historical origins of it, what the framers of the constitution believed it to be. it was a benevolent power. it wasn't to grant ones self and family a get out of jail
free card. >> my five minutes are about up. but you mentioned in your testimony about somebody that's committed like $25 million worth of fraud and there was something, i think, a pardon of a man in florida who had done medicaid fraud and a man in another state that had done different fraud. there were a bunch of frauds and tens and tens of millions of dollars. could that in any way be seen as just as one of the statements about just the difference of opinion of the political parties and how they view justice? >> well, you know, starting to get into the gray area. i think what is most-- the committee and the legislation that we're considering is most appropriately focused on quid pro quo pardons, which are certainly out of bounds. i think the constitutional amendment would clearly, could clearly get at a more circumscribed view of the public interest. i don't understand how it would be in the public interest to pardon somebody who has ripped off the government and medicare
for $75 million worth of funds by encouraging ill senior citizens to have more treatments than they needed. it's hard to contemplate how that could possibly be in the public interest. >> thank you, miss frederickson and my time is over and i'd like to recognize the ranking member, mr. johnson at this point. >> thank you, mr. chairman, i've got a few questions for professor blackman and i just wanted to start first and clarify something. isn't it true that the supreme court long affirmed that the president's pardon power is not subject to any legislative control at all? ...
>> thank you for clarifying that. it's important for the full context. you also, you publicly oppose house joint resolution four, among other things it what it invalidate a part issue for a corrupt purpose. that's language taken right out of the resolution. what your understanding of that phrase and why is that so problematic? >> it's important we focus on the word corrupt. chairman mention the word corrupt. ms. fredrickson mentioned the word corrupt. this is a word people disagree. federal prosecutors have a lot of difficulty proving what is a corrupt intent. the classic example, up i give a politician suitcase full of cash in exchange for public service. that's corrupt. we were talking about something more blurry, for example, when someone says there's some unjust prosecution and it's determined
in order to end this unjust prosecution we need to issue a pardon. under the proposed statute that could be a thing of value. you're giving the thing of value but that's a public act. i'll be very hesitant to push the boundaries on what is and is not a bribe in a constitutional amendment or statute. >> thank you for that. house joint resolution four ssa for summer democratic colleagues have used legislation about pardons to target president trump. last congress adam schiff introduced h.r. 7694, the abuse of the pardon prevention act. this committee reviewed that legislation last summer. professor, you authored an article concluding the bill would have criminalized politics. can you elaborate on that and explain what the problem is? >> sure. and i think the statute suffers from a similar problem that the amendment does, it uses this
word corrupt. it allows federal prosecutor to decide when the present act in the public interest and when it's not. briefly corrupt will be the opposite of whatever the prosecutor thinks is in the public interest. the part of the political act is a public act. i agree with the chairman the secret pardons are problematic and go to go on that one. to the extent these pardons are public, the press can take the flak for it. as an abuse of power and preach mid-remedy, james madison said come i don't think that legislation prevent any name is the right way -- in advance, limit his authority. >> very good. this may be my last question. i was intrigued i what professor naftali just testified to in his premise there are some pardons that is so egregious that it really does require constitution or some other corrective action as he said. he noted president clinton who is probably the most notorious
abuser of the pardon power elites and the modern era for all the things he did, i wonder what your reaction is to your colleague there and although there are some very egregious examples, does that mean we should change the constitution concept? >> i think and i'm grateful for my friends remarks. i think the remedies speak after the fact that before the fact. today we're seeing you can impeach a former president. so a president decides to engage in misconduct in the last month or two of his term, there are political remedies. trying to legislate in advance is problematic because now whatever the president considers to issue a pardon, do i not, he's thinking i could get in trouble. some federal prosecutor, the next robert mueller indict me? that's a chilling effect that is problematic editing this body, congress has oversight rather than chilling before hand. >> 30 seconds left. lesbian -- with several of the
department of justice pardon attorney in all this, the recommendation cynic? >> the doj is clearly advisory. the attorney general general pettus aborts make recommendations but it's the president alone who decides to check yes. >> i yield back, tread th. thank you to all witnesses. >> thank you, mr. johnson. next are questioning is ms. ross, new member from north carolina and you are welcome and you are recognized. >> thank you so much, mr. chairman. and thank you to all the witnesses this is been a fascinating morning and thank you for your perspective and for your scholarship. i have a couple questions for ms. fredrickson. just to narrow down when there could ever be and that use of the pardon power. and the first question is, can
the president's exercise of the pardon power of clemency ever violate our current criminal laws prohibiting obstruction of justice or bribery? >> thank you very much for the question. and i was neglectful in not saying to my colleagues from academia and from advocacy what a pleasure it is to be. josh and and i go way, way . that's to say i first met josh would use jungle law clerk but anyway so we're good friends and it's good to be here. your question is a very important one and i appreciate it. as i stated in my written testimony there is already wide consensus that certain kinds of pardons could be considered criminal acts. that is, in the example professor blackman used i think the bag of cash or the suitcase of cash, i like bag of cash better, it sounds more, that are
visual. so the bag of cash in exchange for a pardon, most scholars, most constitutional experts believe that is already a criminal action. and efforts to obstruct a judiciary proceeding would also, however, one of the things that this legislation would do is to clarify it, clarify the statute to make it even more clear that the bribery statute applies to the president and vice president, and then a pardon is a thing of value. that is why although the law is well understood already to cover that, that type of behavior, it would be prudent to make it more explicit. >> okay. you have done a great job because you already answered my second question in answering my first question, so thank you for
that. but then my next question really goes to the issue of, so if the president does violate the criminal law or obstruction of justice, can either in its current form or if it is amended, the department of justice has said that a sitting president cannot be criminally prosecuted. do you agree with that, or do you believe that it would have to wait until after the president completed his or her term? >> well, i don't tend to agree with it as a legal matter, as a prudential matter. it makes a certain amount of sense to postpone such an activity until after and it depends on what the criminal act was. however, it certainly i think is generally expected that in case of a pardon would happen after a
presidency because most pardons especially ones in a highly controversial like the marc rich or steve bannon pardons are issued often in the fading last moment of a presidency. and so in less there's some i think professor blackman who seems to concede that one can impeach a president who has left office for questionable pardon, but one could also certainly criminally prosecute. >> okay. i just want to be very clear with this last minute. after the president has left office two avenues to pursue a presidential violation of the law for obstruction of justice or bribery. of course the congress could impeach that itself is in the constitution under come after the grant of the pardon power but there also could be a criminal prosecution brought by the department of justice or a
federal prosecutor, is that what you are saying? >> yes. and i would actually want to quote then senator and future attorney general jeff sessions who in speaking about the marc rich pardon said it qualified absolutely. he couldn't find a better example of quid pro quo bribery, and it was a criminal act, and are certainly many conservative scholars who share that perspective. >> thank thank you very muc. chairman, i yield back. >> thank you. thank you, ms. ross. if i am incorrect in my order, mr. johnson, you can correctly, it is your teen but i think mr. jordan would be next to mr. mcclintock. who wants to seek recognition next? >> we were probably go to mr. jordan if he is ready. he may not be.
let's go to mr. mcclintock, thank you. >> you're welcome. >> great. thank you, mr. chairman. perhaps the most egregious recent example of politicized prosecutions came with the mueller proceedings, the prosecution of michael flynn. prosecutors falsifying documents to provide support, they withheld material evidence on the court. they help interviews under false pretenses. he operated entirely in a partisan manner. what republicans were singled out while the actions of democrats in initiating the entire russian collusion hoax. just because the purpose of this politicized process were associated to the president doesn't make these actions in n less beverages or the injustice in less offensive or the ramification any less necessary. it were a number of pardons issued by president trump and his predecessors that i cringed
at, and we should be outraged. but i think the importance of the pardon power in rendering justice in matters like the mueller investigation argue against any limitations on it. i can't believe the founders didn't give weight consideration -- human nature in designing this -- [inaudible] professor blackman, , could you discuss in greater detail the reasons the founders offered in writing this provision of the constitution and how they might apply to some some of the s we've heard today? >> thank you. the framers model the pardon power after their prerogative thinking which is basically an almost absolute power. there are two limits only pardons for federal offenses and you can't pardon impeachment. beyond that there's really no discretion. during the constitutional convention there were debates about whether the congress should have a role in the pardon power. for example, whether congressman
approval of pardon and those were voted down. history tells us the framers viewed this power to be residing in a single person, the president. george washington our first president, he very famously issued pardons of those who were in the whiskey rebellion. this was an insurrection perhaps not to distinguish what people think happen to fugues in the washington. washington pardon people in the whiskey rebellion to make peace, to bring tranquility to the nation. he was controversial. a lot of very important work. i think it's why one person the president should at the discretion to decide how to pursue the common good. >> i'm sure they must have foreseen just human nature being what it is that the would be a president who would issue pardons for partisan reasons, for personal reasons. i can't believe they didn't take that into consideration when
they wrote this provision. what would they be saying about some of the arguments we've heard from the other side? >> there were debates in the philadelphia convention as well as the virginia ratifying convention about abuse of pardon power. george mason who was invoked earlier with very much worried about the president using the pardon to cover up his own crimes. james madison said the remedy in that case is impeachment at a think that's probably the right answer. the pardon remains valid and the president can be removed from office and internet under the prevailing wisdom he can be convicted even after he leaves office so the still some peace and congress to punish him but again is a public acts. i don't like the secret pardons. it's a public act. we know what it is and the president can we judge politically for his actions. >> thank you. >> thank you. >> i yield back. >> thank you mr. mcclintock. next is the distinguished gentleman from the great state
of georgia, the peach state, and the hope of the atlanta airport and one of my favorite chicken restaurant, mr. hank johnson. mr. johnson there? >> just trying to get unmuted, mr. cohen. i want to thank you, thank you for holding this very important hearing and i'm looking forward to serving on the subcommittee and to participate in the important work of repairing our constitution. like so many parts of our constitution, the pardon power has been repeatedly abused over the past four years. in the cases of roger stone, paul manafort, michael flynn, steve bannon, and so many others, donald trump used the
pardon power to shield himself and thus obstruct justice and to help cronies rather than using that unbridled power to correct injustice and excess in the criminal justice system. his abuse of the pardon power was egregious and unprecedented, and shocks the conscious. ms. fredrickson, why didn't the framers included on the use of the pardon power in the constitution? do you believe they should be limits on the use of the pardon power? >> thank you very much for the question, and i have to say i unfortunately don't know the restaurant the chairman was referring to. i would like to find it next time i'm in your district. i think it's hard to know from the discussions exactly the scope of their thoughts around the pardon power, but
historically it had not been considered for use outside of this idea of being jews as a benevolent power or as an act of grace. although george mason did raise is concerned, his worries were assuaged by james madison as was mentioned, this was sort of a novel territory in many ways because the king himself had not been subject to prosecution in the normal court system and so the idea of a self pardon, for example, and things like that were just not things that it been contemplated. and then of course as professor blackman said then impeachment was seen as a possible approach to the kind of abuse of pardon. again, i think emphasizing why it's a legally correct position to prosecute or to impeach a president after leaving office
otherwise you could never in the theory that pardons can be prosecuted, you could never actually get after that kind of action. so i think that there was not really a contemplation of the kind of criminal actions that might take place, that apart might be used for, which doesn't mean the founders thought that everything possible that a president could do was exempt under his article to section two powers to pardon. >> let me ask you this. during the trump administration we watched the time of the gentleman has expired again as president trump shamelessly dangled the promise of the pardon to keep potential witnesses against him silent. to your knowledge is any other president in history of this country ever so abuse the pardon power? >> well, you know, as professor blackman has noted, there has
been the possibility of the secret pardons. so to some extent we may not know but certainly this past four years has raised significant significant concerns about the pardon being jews as an obstructed device, as way of obstructing justice, as way of obstructing a chill proceedings in court which i think as i said earlier it's very widely held position that those kinds of actions are actually crimes in and of themselves. so, therefore, even if the president could pardon somebody for initial act, the act of exchanging a pardon for testimony would be a crime separate from the one that was pardoned by the president and could be subject to prosecution. >> let me ask -- thank you, ma'am. let me ask ms. hobert flynn. did president trump's abuse and perversion of the pardon power
to damage to our democracy? and if so, how? >> thank you. i think it has been damage to our democracy because it sends a message which president trump talked about frequently, that he is somehow above the law. he talked about shooting someone in the street one doing anything about it. pardoning people who could testify against him shows an abuse of the pardon power and it is one where americans want to see progress put on again, and common sense solutions to be tackling some of these issues. >> thank you. mr. naphtali, after president trump's excesses, how should congress act to curtail the abuse of the pardon power? >> well, i want to repeat i'm not a lawyer so i'm going to speak a settlement who studies
power, as a historian. i believe that as chief justice taft wrote in ex parte grossman, that there is an excess, there's checks and balances on the party. and that we should see the pardon within the framework -- and going beyond what chief justice said -- within the framework of our constitutional checks and balances. and if we find evidence that the president as either ignored the restraints that our founders cloaked would be on him or something her, what we find is those restraints were not sufficient. we have to ask yourself whether congress as part of its role and responsibility in maintaining the system of checks and
balances to take corrective action. and i argued in my testimony not talking about donald trump, but talking about richard nixon. that you have body of remarkable evidence of corrupt intent that is available to everybody in this country, and what richard nixon understood was that no one could stop him. and he came up with a series of corrupt ideas for using the pardon. he was going to have amnesty, he was going to pervert the context of amnesty which it been used previously in our history. professor blackman talked about the amnesty for whiskey rebellion. there were amnesties after the civil war era there was a that president carter signed regarding the vietnam war.
president nixon perverted that idea in order to find a way to cover releasing the watergate burglars. so he looked for democrats, in this case, antiwar dissenters come members of vietnam veterans against the war who had been indicted and openly by the way included this, had been indicted for planning to disrupt the 1972 republican convention. he said please keep them under indictment. hold them under indictment. this is on tape. he said we need them under indictment so that after the election we can let them go, i will pardoned him and i will pardon watergate burglars. that way there would be pardons on both sides. in his chief of staff, white house chief of staff said we don't have enough of these dissenters in jail. there were only six of them, and there were seven watergate burglars picky said we could find reason to arrest more veterans, vietnam veterans who were dissenters, i will put them
in jail so they had a balance. that is absolutely the most corrupt way of thinking of the pardon. so they thought this way. the question we need as americans to think about is whether the nixon team were an aberration. were they the only corrupt people ever to be in the white house, the only people was president nixon the only american president who saw this pardon as a get out of jail free card? as a way of manipulating our judicial system or political, personal gain? and i don't think so. regardless of where you think of donald trump, and i'm making this point here that there's enough evidence for corrective action without even talking about the 46th president. my view of the 46 president is public. i have written about my concerns about his use of the pardon, but other elements of his
administration. but i'm not making an argument for corrective action on the basis of donald j. trump. i see there's enough historical data that the system wasn't working before him, and now the outrage of those worried about the trump era should combine with the continued outrage at people worried the clinton era. you should work together, and my preferred approach would be a constitutional amendment but i'm not a lawyer. my sense here is that the founders -- god bless them, right? the founders made a few mistakes. in fact, that generation admitted it. they didn't think there would be parties, so they put together electoral system resulted in a tie vote because he never imagined a president or vice president would run on the same ticket. >> -- cleaning up wreckage after two republican presidents, and i think your testimony is quite
elucidating, and i thank you for it. and with that i will yield back. >> thank you, mr. johnson and thank you, thank you, professor, and thank you for engaging in terms in which this committee is to do is a bipartisan approach to correcting a problem that is been bipartisan misuse on occasion. mr. roy, you are recognized yet. >> i think the chairman. i first want to say thank you for recognizing our colleague at the outset of the string. mr. chairman, i think he's a good friend, fellow texan and we are all praying for his family, his wife susan and i look forward to consulting with his wife three. secondly, i would like to just raise one issue that it think ii heard from one of the witnesses, ms. flynn, about the extent which pardons were used for worldwide wealthy friends including were criminals, corrupt insiders, all these actions -- justice under president trump.
look, the pardon power has been used at the very beginning for political purposes. we can go back to jefferson, go back here every president has been something and i would say i guess professor naftali, -- system problems that cuts across both lines but that kind of a partisan attack on president trump i just wanted to say i think there was some people that might take issue with the bike our senator johnson, i xhosa people, the criminal justice reform act advocating president trump helped and the president did, in fact, help. so that broad brush stroke characterization i think is wrong and unfortunate and shouldn't characterize this hearing. i think the chairman is time to put together an objective hearing to try to figure out what we might want to do on the pardon power. i think that's important part of this. i would also note there's been a number of controversial pardons. we talked about -- driving
across both lanes and indeed the chairman of the judiciary committee, chairman nadler, was instrumental in pushing for pardons of i think -- the were part of the bombing of the united states said in 1983. it's not the first time the capital has been attacked, yell. this kind of thing is happy. i hope some the people involved in this year end up in jail the rosenbergs but the chairman of this committee asked bill clinton to pardon these individuals who literally blew obama in the united states senate targeting members of the body in the capital. this is nothing new and something i think we ought to be thinking through. the one question i would have, mr. black and i'd like your opinion as we talked but for the primary concerns i have about that draft amendment. the texas constitution, far be it for me to say anything negative about the great state of texas but the texas constitution is i don't know 400
pages or or so, it's long. a lot of basic statutory type language in that constitution. you probably know that. i like and i believe it is critically important the united states constitution is not that. that it sets out high-level principles, , structures of government, bill of rights, how we order, the balance of power between washington and the states your my concern about this measure is it starts getting in the weeds and when you start getting in the weeds in the constitution that's a problem. it requires anonymity anonymity every time you change your views. -- amendment, amendment -- these parties tend to occur on june the 19th or 20th. they tend to occur right of the feeling when you are lame duck. maybe you say if you're going to do a structural limitation that might cut across on a bipartisan basis, may be said pardons have to be finished prior to elections of the of the p
or something along those lines. i guess what i'm saying is if you're going to have reform would be better to have a structural reform like that and something that gets into statutory basis with respect to family members? are we going to say john kennedy couldn't have pardon bobby kennedy who something he felt that wasn't something important because his brother was attorney general? i don't think that's a good path to go down. any thoughts on that? >> thank you. i did some research and there are many proposed amendments. barney frank of massachusetts propose an amendment in 2001 that is exactly suggested. it would have banned pardons from october to january 21 of an election year. so basically before the election until after the inauguration no pardons could be issued. no actions taken on that and that's exactly almost what you said. >> i appreciate that and i don't know if that's the right solution. i am just mulling that as we're talking because i don't think the right path is to go round
and specific in the direction that is been laid up for the committee. i appreciate that answer and w back my time in a second body just think let's keep this as objective as again and recognize a significant amount of work done by the top administration to help the criminal justice reform, cutting across color, faith, you know, et cetera, and every president has issued some pardons that every single one of us would think was somewhat questionable. i yield back. >> i appreciate your questioning and i'm not wedded to any principle. i want to get ideas and we will move from there. next we were recognized another houston, texas, another texan and another houstonian, ms. sylvia garcia. >> thank you, mr. chairman, and pleased to know we've got some great chicken in texas. i know we are known for barbecue and tex-mex but we also have chicken. i actually subscribe to a fried chicken blog. i've got the list of the best
fried chicken places in texas. with that i want to get to ms. fredrickson and after a couple of questions. you mentioned, mr. blackman, blackburn, even the chairman a secret pardon. so is there such a thing? had secret pardons and revealed at a later time? have there been any? i'm just really intrigued by the whole notion? >> well, , i'm not aware of any secret pardons being revealed after the fact but there is certainly a question, a legal gray area of whether or not pardons can be issued in secret. the thing that is clear that if somebody is being prosecuted and they want to prevent that they have to come forward and say they have been pardoned. in a way that's how we would have learned if a secret pardon had been issued. but it would like, if you don't
mind, to speak to the point about bipartisan potential and the chairman, and to say that certainly i think adding to or consideration structural reforms such as timing issues, but also transparency issues that i think professor blackman and i are very much on the same wavelength, that a pardon absolutely must be under the public eye, other things that are think would be really important would be to structure the pardon attorney in such a way that there would be deep involvement which would also be transparent, which is proposed by the legislation, the transparency of the pardon power, but to stretch the pardon attorney role so that there would be a more benevolent aspect to it. because i think one of the rightful criticisms has been that even in the pardon attorneys office, prosecutors often very reluctant to move
forward very worthwhile, legitimate request for commutation and pardon, and having a more, and active presence of those who were seeking justice for those who had been, for overincarceration '04 over sensing for the criminal justice system. >> you anticipated my line of questioning because exactly what is going to ask you next was about the role of doj in the pardon attorney -- i'm not sure if it's a section or division, for one of the things of course, the former president just ignored any recommendations and pretty much closed their role and they were not involved in many of the pardons that he did issue. do you think that was part of
the problem with a lot of the criticism that he got in some of his pardons? would be it be a fix that wen make to make sure that it is structured so that i was a role for doj in the pardon attorney? >> well, i mean, i think it's a rightful criticism. one of the aspects of president trump's hardening was the very limited role of the pardon attorney, which it does serve as advisory capacity. even those very deserving people who were pardoned from the criminal justice system often only received a part because of the intervention of a celebrity, like kim kardashian, and that's unfortunate. again as the said i think there have been criticisms in all administrations of the pardon attorney not being attentive enough to the failures of our criminal justice system and having a broader understanding
of which types of individuals to move forward. it was mentioned how many pardons and commutations president obama issued, about 1700. but there were almost 8000 petitions that were left unaddressed, maybe rightfully so, but again i think it's because the pardon attorney's office may have some inappropriate, needs to be more affirmatively directed towards recognizing the injustice of our criminal justice system. >> thank you, thank yo, with only eight seconds left i will go ahead and yield back. >> thank you. thank you, ms. garcia. i wasn't thinking of fried chicken. pastors in atlanta was a restaurant and it led and they have the best boiled chicken. >> okay. >> that's just for ms. fredrickson information. -- you are recognized next thank
you very much. i appreciate that and i am coming to you from the beautiful state of minnesota where we are below zero here, but i am warm inside. i appreciate the opportunity to take a couple minutes. mr. johnson and mr. mcclintock really covered some of the things that i wanted to ask but i but i thought i might just take the opportunity to offer professor blackman a few minutes -- [inaudible] the issue of legislative involvement in the presidential pardon issue. it's something i'm interested in and -- [inaudible] >> sure, sure. they too so much. i appreciate the chance. i think -- i'm hearing some interference so it's a little hard to speak. i think it's another, , someone who is not unmute. i think the role of congress here i think is important. i think the role should occur
after the fact in terms of oversight. in the event the present issue is inappropriate, that's something congress can investigate. what i would hesitate is to put limitations on who the president can issue a pardon to and how the pardon can issued. i'll used h.r.-4 as an example. i'll -- it says, it's a pardon issued for corrupt purpose should be about. the amendment does not define what a corrupt purpose is to get these did they. a lot of us are attorney, not of the follows are. congress doesn't defy the statute, they let some else to find can let federal prosecutors to find the statute of the courts to find the statute. if congress wants to prohibit some specific act, they need to do something more than to say corrupt purpose. it's not a term of you and understand.
people argue about these things so if this body wants to put an amendment to prevent certain types of action a should spell them out. what does it mean to be corrupt? i think bribery is -- you can apiece for bribery. you can prosecute for bribery. but this difference between bribery and corruption. corruption is one of these catchall provisions, a catchall for you think a sweeping a lot of contact that is perhaps unpopular but don't think fits within the -- [inaudible] >> thank you very much. i will yield back the remainder of my time. >> thank you. >> thank you. thank you. stay warm. >> we are trying. >> i'm sure. our next congressman has five meters is another freshman from up the river,
representative bush. >> thank you, st. louis and i, thank you also for convening today's crucial hearing. it is without question that donald trump did away with all presidential norm. donald trump use of the pardon power will forever be associated with nepotism and corruption. it made clear that under donald trump an act of mercy is given to wealthy donors well-connected friends, his cronies and his white supremacist allies. under trump the pardon power became an extension of the privilege afforded to the rich and powerful. meanwhile, 14,000 14,000y applications are languishing in the bureaucracy of the department of justice. thousands of people with no connections to the upper echelons of power and access are left with limited recourse, caged behind bars as the devastating and certainty of covid-19 runs rampant.
the pardon power is not the problem. the problem is that it has not been used enough to correct for systemic injustice. take for example, byron miller who was born and raised in missouri's first district right here in st. louis. he was convicted on federal drug charges at 28. he is now 53 53 living with hypertension and asthma, fearing for his life that covid-19 makes its way through our prisons. his mother is now 80. his father has cancer and his daughter was only six years old when he was sentenced. his absence is deeply felt in his family and in his community. these are the kinds of people our president are leaving behind, people like byron who are aging behind bars, and others who have been sentenced today wouldn't be serving -- would be serving much less time if any at all. the pardon i was great as a virtually unchecked power of the presidency. this extraordinary power can be
a powerful tool of freedom in the context of our punitive system. the pardon power allows presidents to put humanity over greed, justice of the violence, and righteousness overpower. our country is in the midst of a national reckoning on racial justice. for far too long we have oppressed, exploited, policed and criminalize black and brown communities. we are in need of national healing. this moment requires transformational change and this is a kind of change it can be done with the stroke of the pen. ms. hobert flynn, you talk about the use of the clemency power as a tool to address racial discrimination. what role candidly and addressing racial disparities in the criminal legal system? >> you know, you are right that so many people who did not have access to a process come someone
that neutral and this is happening with of the present to be clear, clean and others, if they don't have summoned to help them that can be a real challenge. congress can explore legislation to create and independent clemency board to review petitions, the partisan commutations and advise the president removing the process and the doj because there is a conflict when doj prosecutors reject some of the prosecutions that they had. this could be at check and a new vehicle for this to go directly to the president. i think the president also could look to create and streamline the process for clemency, taking it out of the doj. and i would encourage looking at debra left who was the pardon -- choosing office of pardon attorney during the obama
administration. as carolyn said they wanted to 10,000 commutations. there were a a couple probleme faced that one is as it opened up the street for people to get applications in, focus on racial justice and excessive sentencing, they didn't have the resources to add staff because congress was blocking efforts to provide more resources. so congress can play a role here. second, -- she had access to the white house council setting up a board where you had independent people making recommendations, people inside and outside of the criminal justice system, i think that could be a real tool to move for others. >> let me ask you one quick question. only a few seconds. in your test when you note racist policies the war on drugs have disproportional devastated community of color and that you
believe the presidential administration should use clemency power to remedy these injustices. why do you feel that presidents have been reluctant in this way? it's also worth noting -- go ahead. >> we have deep problems in our criminal justice systems t must be addressed, clemency is only one tool for racial justice. we have to be looking at all levels, since and guidelines, actual i don't even think clemency should be limited to something that the president can do. it should be able to be done in courts, come in federal courts across the country. what we have to look at his top to bottom reform. >> thank you. i yield my time. >> thank you, thank yo. our next congressman to be recognized as some who played in the nfl so long ago that he never played against tom brady, mr. burgess owens. >> that puts things in
perspective is. thank you so much for that. first of all, good morning, everyone, and my colleagues of the subcommittee, chair and ranking member. this is indeed truly an honor to be with you. what an hoping to do is bring to this committee my passion for criminal justice reform. i've had a mission for decades -- [inaudible] and given a second chance. i am always pleased when americans are given a second chance. alice johnson is a great example of that. a grandmother given a life sentence for her first offense and it took 20 years before someone heard her voice and that was president trump. of course president obama -- [inaudible] i want to say -- [inaudible] the vast majority of pardons and commutations on trump's list -- cases had been championed by criminal justice reform advocates including people serving --
[inaudible] in low-level offenses. [inaudible] passed by two-thirds of house and the senate and go to the states and three-quarters of the state legislators also have to pass. there's a reason for why it has been done this way. it purposely put in place -- by passions of politics, every four years, by by reason and by time. [inaudible] there's been over 10,000 -- attempts to change for or ar constitution. it's only happened 27 times. so we the people are the ones that will -- not by the stroke of the pin. it will not be done by legislation. it would be done by we the
people. even though this is very educational i think this is a kind of conversation we need to have so we can understand this process and our constitution. i can predict this amendment will not be the 28th. that being said i just have a couple of questions of professor blackman. what are the explicit limits of the constitution that the founders placed on the pardon power? >> thank you. only two. the first is that the president can only pardon federal offenses turkey can't pardon state offenses and second the president can't pardon impeachments. >> okay. going to the constitutional convention. did they -- [inaudible] >> yes. there were proposals having actually the congress involved, the congress had to approve of pardon and those were rejected.
madison nether said we really should put the power of the largest single individual to ensure their speed and efficiency. as you know we have a lot of people and congress making decisions they don't always agree on things. in this case unitary executive decision does make sense. >> this is something we go through almost every four to eight years. can you characterize president obama's part of chelsea manning? something i remember being a big deal for a while. how does that compare with the majority of trump's pardons? >> i think the naming pardon was quite controversial. wikileaks was involved and was national good implications but i think the bigger point, i think perhaps people on one side it out have certain conception of public goods and people on the other set of the out have different conception of public good. that's why there's elections. president biden will probably
look at different people department than president trump did. i think your point is well taken that different people -- very different reasons. >> thank you. thank you so much. i'm going to give back my time. >> thank you. we only have about ten or 12 or minutes of mr. naftali and i will get to a second grant. ms. jackson lee, if you would like to take your five minutes. let me thank you, mr. chairman and the ranking member for holding this committee hearing on this very important issue. it's been stated that the pardon power of the president is not, in fact, unlimited, though government by the constitution. i offer these thoughts as i present my issues in the backdrop of january 6.
the unforgivable attack on democracy incited by the 46 president where loyalists laid siege to the capitol building rating gaps in the symbol of the confederate battle flag while seeking to disrupt the joint meeting of congress to announce the winner of the majority of votes cast by presidential electors, all the while chanting hang mike pence, culminated a range of corruption, abuse of power, criminal conduct, unethical behavior and malfeasance unseen and america, and that weakened our country and made poor and left it more divided than ever. as a standing member of this committee i chose to be on this constitutional committee even as i sit in the last scene because i believe it is important for us to coddle, protect, nurture and build the constitution. i'm delighted with the witnesses and i want to acknowledge my hometown constituent josh blackman, professor of law south texas college of law, and as with all the other witness,
karen hobert flynn, professor naftali, and, of course, the witness of professor fredrickson. let me raise this question to profess a naftali as a to the history of the dealing with the importance of the premises power. i might add to the fact that not only are people languishing, i over the years offered legislation before we had criminal justice for and sentencing reduction to try to address the tens upon tens and hundreds upon hundreds of elderly african-american or minority incarcerated persons in the federal systems based upon the drug siege of the '70s and '80s. so professor, would you give us just a historical comment, if you would, on whether or not the
president, has president, authority would even reach to the point if he had reached to attempting to get pardon to those who perpetrated criminal acts under january 6? and then would you as a historian see any parallels between the post trump era and the nixon era in which congress instituted several good company reforms aimed at reining in potential abuses? thanks for your leadership and scholarship as well. >> thank you congresswoman jackson lee. after he was acquitted, president acquitted -- president johnson use the pardon power to pardon jefferson davis. that's the christmas pardon of
1868. it's actually very hard for me to -- i get emotional talking about reconstruction in the united states. because i think we as a people and especially people of color, but we as a as a people bey burden because our country did not face the truth of the civil war and then swept it under the carpet. and i believe the amnesty or jefferson davis helped to create that burden. and that was, that was a pardon by a president at the end of his term. i worried, i have to tell you, in january that we might see some pardons of the insurrectionists. i spent today talking about nixon because, not just because
i know -- i know nixon -- that we have evidence, we have shared body of data, and all of you, i know you are busy people, and you should be, we can actually all listen. it's there. we don't yet have, but i want us to have come a shared body of data about the trump -- we have a lot of public information but there's a lot more to learn. i have a feeling that the second impeachment, ms. jackson lee, may have actually deterred president trump from perhaps, perhaps pardoning some insurrectionists. i don't have evidence added a want to make the claim that he would have come but it is a question i will be asking as a historian. so yes, presidents have had the power to pardon insurrectionists. indeed, as professor blackman would certainly no, i am
mentioning him because he talked about the issue amnesty, that the founders did talk about perhaps at times using the pardon to calm our political environment by issuing amnesty. one element of our history that i think really needs to be stressed is that our founders did not think of a partisan era. they did not think in terms of political parties. that's one of the reasons we have the 12th amendment, because they had to correct the electoral system, at least -- because they had not imagined parties. and how they conceived of limits on the pardon, i think, are less powerful because they didn't assume the it would be a prs party in congress. because they had not thought in those terms. that's what i am suggesting structural reforms, because the
pardon is too powerful a tool now for president in a way that the founders i don't think anticipated because of the change in the balance of power brought about in a partisan age. one more thing i would mention this is outside of my lane but since you asked the question about tort reforms, too, i believe that the issue of pardon is not just an issue for the white house. that that power resides in the president's as our head of state and, therefore, congress does have a role perhaps in expanding knowledge of the pardon to those they could benefit from petitions. the issue is not simply that the petitions get red by the people in the justice department and then fed to the white house or some system. it's also that the people in the country who are incarcerated, who are deserving of mercy know how to communicate their story
to washington. in the case of donald trump era, at the very least kim kardashian was able to provide some of those stories to the man with the pen. that's a very -- from people have suffered from unfair incarceration to get their stories before our chief executive. so as we think about limits on the president's misuse of the pardon, we should think of ways to broaden the publics access to that executive clemency. >> thank you, ms. jackson lee for asking the professor. i like to follow-up with a professor. in in your study of the history of impeachment and are pardons, are you known of any secret pardons everything revealed? >> no, i'm not. in fact, when that issue arose during the last week of the trump administration, i was learning something. i want to make one other thing
clear. i am worried, i am worried about the nature of the climate of power. this is not artificial concept. professor blackman, with whom i agree on a number of points, but professor blackman talked about dealing with the problem of the power after the fact. and i'm not sure that the history of the issue of the pardon suggest that is enough. because part of the problem is if president and someday her inner circle believe they can get away with it, that has an effect on our judicial and congressional system at that time. if people know that they will be protected, they might not be truthful to congress. they might not be truthful with the fbi or with a grand jury. because of this notion that the climate is permissive.
and and i think we've had that permissive climate in the number of presidencies. i document, and you come in yourselves about nixon, and we are now having a debate over the extent to which there was a permissive climate in the trump administration, but there were certainly at least a permissive climate in the clinton administration the last day of his second term. that permissive climate is a threat to our constitutional system into the balance of power that the founders believed in. .. president obama had a system setup that was rather stringent and had served ten years of your
sentence which is white nine years of your sentence should have not made some drug nonviolent victimless drug crime should not be parted because he served nine and not ten years. is there any other president that set up a system like that of hoops to go through or criteria and done in a totally objective manner where they did not know the person? >> i really don't know the nuts and bolts history of the approach to the pardon attorney. i know that for many presidencies -- i know in the case of nixon ironically a year before watergate the white house was trying to create a better system for pardons, not every nixon pardon, by the way, was subsets. the clemency is undermine the systems but presidents have tried to scrutinize this
approach and let's keep in mind that the office of the pardon attorney we've had as a people for a long time but it was, i believe created in the 19th century. so yes, i think the issue mr. chairman, the issue is when presidents go outside of the system and how often do they do that? when they stay within the system and when they let the expert at doj and the civil servant provide them with data and recommendations and the attorney general of course plays a role but that is one thing but when they go outside the system and we have examples of presidents doing that i would argue the evidence seems clear now at least that president trump one outside the system more than his predecessors but whenever they go outside the system usually, not always, but usually it's the controversial part that was the case with president clinton and with president nixon contemplated pardon and with
president george hw bush so how do you keep the president within the system? that is the president's prerogative but there are ways, i think, to complicate the creation of a permissive environment. >> your atlantic article which i thought was brilliant had several suggestions. one was the timing and that doing a pardon before the end of the election and did you consider a president in his first term as different from his second term or did you consider having to give notice before that election day was a limitation was ten days before election day and having noticed to make sure it was not a secret pardon and what are the other reforms you suggested in your article that we should consider? >> mr. cohen, thank you for referencing that. i really believe in deterrence because we are all imperfect beings. okay? even the best of us face temptation. i think that one of the great deterrence is public sanctions.
in other the public responding to what you've done and that is why, by the way, secret pardon concerns because in the public, by definition, doesn't know about it. but that's my presidents i want them to fear -- i like presidents too but i want presidents to know that the public had a chance to give up a verdict on their pardon. that is why i very much like former congressman franks idea that you set a structural sort of deadline for the use of the pardon and do it before an election so they can't do it after the public has a chance to respond and the reason you would do it in october is because the public has to know about these things. if you can figure out a way to require exposure you could do it in late october rather than october first and i think that's a good idea. second thing is, although the
self pardon and there are lots of good arguments about why it shouldn't be constitutional but in the nixon time they looked at this and decided that it probably wasn't and that it had to do with what the supreme court was doing. the supreme court sent a message in a usb nixon that even the appointees of the president cannot vote against the president. >> i really believe that i really believe that that sanction should be included and that you should not have self pardons and finally, i worry about the presidents ability under the temptation to pardon those who are political associates. i think that should be looked at and prohibition should be looked at heart as well regarding them. >> thank you. i know you have a hard cut but i one last question and i will
finish my overtime and that is to miss fredrickson and or to miss hobart flynn. the proposals mr. schiff has in his bill the likelihood of an amendment to the constitution is degree of difficulty is great but the statute is not. are there any problems you have with the proposals that mr. schiff has in his bill and are the that should be in there that could be passed constitutional muster and put limits such as the folly and others have discussed? >> thank you very much and to professor i have enjoyed hearing you speak and i'm always a fan of historians, being a daughter of a historian. it is very important part of the conversation. i think the congressman shifts bill without some very important reforms as i mentioned which have to do with transparency and
ensuring that there is a broader dissemination of information about the pardons as well as the prosecution that would be pardoned but also again, the clarification of the bribery statute which, i think, you know, it is widely held that already applied to the president to ensure that there is no question about that and beyond that i think certainly congress should be considering some of these are forms and they may impose greater challenges in terms of getting closer to the confines of the article to authority that the president has as circumscribing the grants and pardons in a way that doesn't constitute a prosecution for a criminal offense which has already been seen to be allowable but actually telling the president when she cannot pardon somebody and it is worth considering and it may be more
challenging in terms of the constitutional limitations. >> so, on the idea of the secret pardon and the [inaudible] do you think that could be done statutorily or is the broad this of the constitution so it can't be done? >> i think it is a gray area and certainly be worthwhile for congress to move forward on the transparency issues in the transparency provisions that are included in congressman schiff's bill and but also to look at timing issues and certainly sets out a very important viewpoint of congress' role in understanding the constitution which the professor blackman rightly says that congress plays an important role in the interpretive process and sends a strong message. i think there is a possible constitutional challenge and it would be something that would occur but i think it would still merit going forward in pursuing such reforms because i think
they might certainly stimulate and administration to try to adhere to them and if the administration did not it would provoke its own political backlash. >> thank you, miss fredrickson. thank you for taking that overtime and for answering the questions. is anyone else on the committee desiring to ask questions or should be close this up? >> i will take it if it is offered. another five minutes or less. >> or less, thank you. >> just quickly, i think it was a productive discussion today and i appreciate that and what everyone brought to the discussion. it's important and what we have acknowledged is their people politically agreed on either side of this depending on who the president has been but i want to point out that some things have been said about president trump this morning and been accused of not only in one sense going outside the system as it was set a few moments ago
to the egregious violations of the pardon power but i just want to ask president blackman to put a bow on all of this. i mentioned in my opening -- president trump granted nearly 240 pardons and commutations. you know, we've heard a lot this morning about the pardon power but according to the pew research center president trump use quote, the power then nearly every other president since the turn of the 20th century. professor blackman, i want to ask you would you agree that the grants of clemency and pardon and all of this that president trump used and was done by them at least from this objective viewpoint in a way to rectify and unjust sentences and prosecutions? >> i think so. jack johnson was a african american boxer was charged with violating the nono act and it basically was very negligible law that prohibited transforming
[inaudible] he had a mistress who had to be white and was charged with basically having a relationship with a white woman and he spent time in prison and this was almost 100 years ago and this was a pardon that probably should have come some time ago but it was one of the more commendable pardons that president trump issued. >> thank you for mentioning that. i will point out that he was -- my son is named jack johnson and i take pride in this. the boxer was convicted by an all-white jury for that crime that you said and of course civil rights groups and advocates that petitioned many times to officially recognize that his prosecution and conviction and racial intolerance but it took until the time of president trump to correct that historical injustice so you know, as was mentioned, alice johnson was another for a drug-related
offense but the point is i guess what i wanted to include here at the end, mr. chairman, is to make the point for history and for the historians and the lawyers and all of us involved in this that there have been controversial pardons by almost every president but they have also been some very noble things that have been done in president trump certainly is the latter and i wanted to know that for the record so i will -- i know we are over our time and i will you back and i appreciate the phone and the content of the discussion this morning. >> i would like to comment. i have my hand up and make sure, leeper you are recognize. >> thank you so very much mr. chairman. very important hearing and i will be brief on my comments. professor, thank you for getting us food for thought but a structure and a roadmap along with the legislation that we are now looking to assess. i gave those opening remarks specifically because, as you all know that was the height of the
discussion as to whether president would, in actuality, pardon those domestic insurrectionist's and it was a frightening possibility. i also want to say that i live for a long time on this committee and with the team a number of individuals in the federal prison system who are predominately african-american and people of color visited some of them, had peoples with family petition and they wanted relief. it's a painful experience. it's your neighbor incarcerated under these mandatory minimums and they cannot be relieved so you gave an interesting point about structural of it and the potential of congress and also information and thank you for that. i wanted to conclude my remarks by saying that this was an important agenda and the form is important. constitution is precious and it's a precious document. thank you for your historical perspective and i think we can
continue to recognize that this document has lasted for a time that pushes us to keep it prospectively and to be serious about the protection. i look forward to working with the chairman on this bid finally, let me offer my simple these to my late congressman, the congressman from texas for obviously the tragic loss to say that i know that he was dedicated to the service of this nation and i know his constituents in the nationstate were dedicated. thank you and i yield back. >> thank you ms. jackson lee. hank johnson has asked for a few minutes and i think he's the only person who has and with permission of the committee we will recognize mr. johnson for the last round of questioning. >> thank you. it would be fair to say that
president trump was rather stingy in his use of the pardon power compared to president obama, is that correct? >> absolutely. >> in fact, trump pardoned 143 and commuted 94 sentences and obama in his eight years pardoned 212 and commuted 1715 sentences. would it be fair to say that president trump commuting sentences shows more mercy then president trump who simply let a bunch of people -- [audio difficulties] particularly in the wee hours of the morning on the night of january 19 he issued of his 237
pardons and commutations term commuted or pardoned more than 140 people in the wee hours of the morning just ten hours before his term ended. this included steve bannon, a potential against him who was under indictment for inciting trump supporters in a build the wall. professor blackman, would it be fair to say that it is best for presidents to depend on the office of the department of training rather than simply those commutations out of their back pockets? >> i thank you for the question representative. the constitution gives the president this power.
i agree with ms. fredrickson and they may make sense to have people who aren't in doj making the recommendations because very often doj supports the prosecution and i think having -- >> how many times did president trump rely upon the office of the pardon before making any of his 237 commutations? >> i don't know but i think that number is small. >> and how many did president obama due under the office of the pardon attorney? >> i don't know the number but i'm guessing it's a bigger number. >> i think it was a total 1927 and you decide on the attorney. fessler fredrickson, what is the set of prerogatives and use of the pardon power and how can we
best protect our democracy from being undermined by the illicit pardon power as we saw happen under the trump administration. >> i would first like to thank you for that question and it's very important one and i would like to associate my self with the remarks of my colleagues here who talked about the need really to have a wholesale reform of our criminal justice system. it has a disparate impact on black and brown people. the pardon power is one element of that but it is not sufficient clearly in the commutation but having a system inside the justice department or a better rectus as ms. hobart flynn also suggests is a board that was made up of weren't all prosecutors who could or would be considering the real injustice that has been done and who could be sentences could be commuted or pardoned through the president's pardon power.
but that i think is an insufficient because there are so many people who are prosecuted for low-level drug offenses who are already in prison for excess of time that unlikely to address all those people through the pardon attorney process or through any kind of commutation and pardon board. nonetheless, it's very important to have a system that does allow the most significant cases to move forward and be put in front of a such a board or in front of the pardon attorney for expedited process. >> thank you. thank you, mr. chairman. i yield back. >> you're welcome mr. johnson. i've been told by staff that missed bush might have a question. is that correct? representative bush? going once? going twice? this adjourns the hearing.
i want to thank all are witnesses for appearing today and with that objection all members will have five edge late of days to submit the written questions for the witnesses or additional materials to the record. i would like to specifically ask the witnesses if you have thoughts about legislation either the amendment to the constitution or more likely statutory changes and suggest or put them in your comments to the chair because we are going to try to draft something that is feasible, passable and proven thing so if you have suggestions we could do to a moment to the statutory that would be appreciated greatly and with that being said i am done and in memory of representative, congressman right this hearing is adjourned. >> the impeachment trial of former president donald trump continues today went legal
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