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tv   House Hearing on a Presidents Clemency Power  CSPAN  February 16, 2021 11:38pm-1:48am EST

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the constitution. >> the committee on the judiciary subcommittee on the constitution civil rights and civil liberties will come to order without objection the chair can declare recess at any time. before we go into our committee i would like to express the chair and all the members of the committee and the congress sadness at the passing of representative right. he served for short period of time but was a gentleman and we will miss him and mourn his
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loss i would like for us to have a moment of silence in his honor. without objection 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 are recognize. >> thank you for that mr. chairman. colleague is joining us this morning with an interview this morning and he representative asco h well he was a good man a truly dedicated public servant so thank you for that i will lead us in prayer. thank you i pray heavenly father thank you for this day and the work you put before us and all of our colleagues.
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we are reminded this morning of the preciousness of life and how fleeting it is and i i pray representative rights example would be one that would shine for all of us he was truly committed to you and his family and c country and to all those he served let that be a shining example and let us bee reminded that life is short and we make the most of it. we pray for the right family all of his constituents everyone affected and our colleagues as well that they continue tole bless him. in jesus name amen. thinking mr. chairman i yield back. >> well done. now we go back to the committee the hearing on constitutional means for clemency power. before we begin i would like to remind members new and
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returning we have established an e-mail address distribution address dedicated to circulating written materials members may want to offer as part of the hearings today. if you like to submit materials and we will distribute them to members and staff as quickly as possible. i will now recognize myself an opening statement. i'm pleased to convene the first hearing of subcommittee on constitution civil rights and civil liberties the 170 congress i look forwardd t to working with the gentleman from louisiana and other members of the subcommitteent on other pressing issues addressing us in the months and years to come. we will no doubt have sharp disagreements it is my hope we can always disagree
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with mutual respect as colleagues and each of us represent our constituents faithfully into the best of our abilities. we began by picking up on a topic we devoted to hearings to previously which is the proper scope and use of the presidents constitutional power to grant clemency that is outlined in article two section two of the constitutionns and his broad clemency power purpose is to act as a safety valve on criminal justice as system and o ensure that mercy tempers excessively harsh punishment. those that are more fiercely urgent from the birth of excessive imprisonment or the collateral consequences from those convictions. perhaps that point is borne by people of color the stinginess
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of which modern presidents have declared clemency since the eighties with the war on drugs that really goes back to methe seventies. between 2013 and 2014 i wrote for letters to then president obama and attorney general holder urging the president in attorney general be more involved granting more clemency petitions and offered to opinion pieces calling for more clemency grants. in fact i had written the president early in his second term and told himit i had three caesar wanted him to work on cannabis and commutations. maybe it was effective but he was a little shy on clemency i also wrote to president trump for him to commute the sentence of alice ray johnson encouraging him to do more than his predecessoror. he did issue great number of
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clemency probably more than most in recent times but far from those that deserved it. i asked if he would do more that is my hope that president biden would be a leading example of the clemency power especially among those who may be more deserving lose please have not been heard the subcommittee will commit itself to pushing to more expansive use and i hope will be bipartisan. because we are talking aboutse freedom. and considering the proper scope and use of clemency power there is another matter toap consider if there should be limits on the power when the president grants clemency for corrupt purposes rather than an act of mercy. those of controversial pardons that raise these type of questions which is why they
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have a long-standing interest in the subcommittee. they often don't keep with the purpose of the clemency power. in 2019 the subcommittee consider the question if the t president can issue a pardon and they consist consensus among all the witnesses including the onene request that it would likely prohibit pardons and indeed during the nixon administration the department of justice office of legal counsel concluded to be unconstitutional that no one should be a judge of his or her own case. questions about the proper scope of the clemency power. >> no presents committed to abuse the power with a law enforcement investigation but the manner in which he use the clemency power throughout his presidency raise the concern he may have been willing b to do just that for his political allies and for example the
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special counsel robert mueller in the presidential election on multiple occasions think of the possibility off witnesses who refused to cooperate and specifically paul manafort former campaign chairman and michael flynn, national security advisor and roger stone senior campaign advisor. ultimately he would pardon all three of these individuals for variousso criminal offenses during the final weeks in office. in addition using clemency power and self-serving ways as most of those who would receivee clemency with other personal or political connections to him. that seem to be the thread rather than the crime and the .sentence. with clemency for republican members of congress, one of whom i was personally close to end nevertheless convicted of various criminal offenses ranking from bribery and insider-trading to misuse of
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campaign donations. his son-in-law's father am political strategist awaiting trialal on fraud charges travel wall on the us mexican border. we presume he didn't do that but we don't know that for a fact because there is such a thing as a secret pardon which is what we should addressn, today. and those that would expressly prohibit presidents from granting clemency to themselves and the family members to the third degree in the administration officials paid campaign staff who committed an offense directed
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by the president and has a catchall provision making any pardon invalid for the corrupt purpose. and introduce similar resolutions in the previous two congresses while this has clemency for recipients i like to talk about ways for that clemency process of transparency and the timing of the pardons in the commutations. specifically like to hear the witnesses views ne a of requiring public notice to get around the issue of a secret pardon or commutation that could be issued before election day. it has to have some time. and a requirement of notice if it was a secret pardon it would it be known and that has to be addressed.
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and so that their voters have noticed that only in a presidential election maybe only in the first term. and at the super pardons by which clemency decisions are made and with that department of justice clemency process. is a subcommittee on this issue we think the witnesses for being here look forward to a lively discussion. now like to recognize the gentle man from louisiana the ranking member. >> thank you mr. chairman. article two section two of the constitution has very clear language the president shall have to grant pardons against
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the fences. some have used this power more than others this is on their own conceptualization of justice in their own judgments and most of the country that hass respected that president trump issued 237 total pardons and commutations and for years. and president obama issued 1927 and president bush issued 200 and president clinton 457.d those that were very controversial for example including chelsea manning who endanger national security. and with the joint chief of
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staff and then lying to federal investigators. but president bush commuted the sentence of scooter libby which was controversial and president clinton issued pardons to his own brother for drug-related offenses. a fugitive political donor and a caa director one - - cia director. and those that pardon roger stone and michael flynn they are exercise their judgment that were controversial and with many segments of the public. despite the bride use from president to president and from the entire history that
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prevention act last congress republicans explained the bill is unconstitutional with the committee markup and nevertheless favorably reported the bill on a partyline vote he recently introduced the propose moment to narrow the pardon power i have several significant concerns. many of us do among and every issues to declare the pardons issued for a corrupt purpose would be invalid and not problem is that it's vague and broad language and not a framework to determine what amounts to a corrupt purpose. sure they would argue certain pardons issued for a certain purpose most would argue they serve the interest of justice. and then that that is why they have the pardon clause as they did structure it with that legislative involvement those
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that have proceeded from causes inflamed resentment of the major party and then that conduct of forbearance and diplomacy. then that would be improper because those like passion and my in the moment for humanity. and that was proposed and for good reason and that proposal was defeated but then as it was designed in the constitution for a president to exercise as they see fit based upon their personal judgment and notion of justice thank you for appearing before the subcommittee and i hope we
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can have another conversation and i yield back. >>. >> unanimous consent requested for submission of the opening statement for the record and i would ask for unanimous consent for that and without objection the statement would be entered into the record if he chooses to make a statement he is recognized at this point. >> i am fine. thank you. >> now with this introduction we welcome witnesses and thank you for participating in today's hearing. and after the introduction for his or her own testimony.
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and then in the absence of the proverbial time i will notes when those five minutes have elapsed. they will be a timer on your screen so please be mindful i would like to remind all of the witnesses you have to provide truthful testimony and answers to the subcommittee a false statement you make today under section 1001 of the united states code. the first witness is who is from practice at georgetown university and senior fellow at the school of law. teaching courses on the legislative process
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constitutional law and democracy previously the president of the american constitution society for law policy and also an extensive career serving the government do the clinton administration chief of staff to senator cantwell and deputy chief of staff for tom daschle. also serving as a law clerk for the us court of appeals for the us second circuit receiving her jd from columbia university school of law. and then graduated from yale university.
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>> i really pleased to have the opportunity to appear before you today on this important topic. this has been said the pardon power gives the presidenter the power to show injustice and show mercy but the breath of this has made it susceptible to misuse just before leaving office in 1992 present age to be brushed pardon formeraser secretary of defense and five others convicted in the iran-contra scandal and president clinton's pardon to a fugitive felon who was indicted for fraud and tax invasion in the ex-husband of a major donor to hillary clinton senate campaign and clinton foundation was widely criticized. former president trump has gone further to grant questionable pardons and on his final daybu he pardon 74 people in commuted the sentences of 70 others including one convicted of defrauding medicare to the tune of $75 million. it was to be a benevolent power but there are some
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well-recognized limits and the only extends the federal climbs to obstruct justice and that is constitutionally utsuspect. congress could reform the pardon power by constitutional amendment with the chairman's proposal would do and the administration officials and with the direct and personal benefit officials. and then to be in cooperation with the president. and then with a get out of jail free card with those clear victims of injustice. also reforming the pardon power with statutory limits there is athis bill that would propose two important reforms
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his bill would require doj in the president provide congressional committee with materials related to the prosecution as well as the pardon and strengthen the bribery statute by clarifying the applications of the president and vice president as an official act to grant the commutationhaha and is a thg of value to ensure that any offer of a pardon itself would be a criminal act as part of a corrupt exchange and also declare presidential self pardons invalid this legislation would was stand constitutional challenges and widely accepted congress may impose criminal penalties intended to bribe a recipient since legislation does not circumscribe the actual grant of a pardon it doesn't tread
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on the article two powers and doj has issued two opinions that are consistent with this understanding october 1999 statedas opinion and the application of the bribery statute has no separation of powers let alone a serious one. the constitution confers no power to receive bribes that specifically forbids for serviced in the office and the constitution expressly authorizes to impeach for bribery. with respect as is well known in 1974 there is another opinion and stated to be illegitimate. and authored by that would require the president with a recipient a reprieve granted and that is not limited such
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legislation would bring public attention to ill considered grants and another area where congress can unleash the pardon power is the oversight function after the president pardoned rich and with that bipartisan investigation no criminal charges were issued there was highly questionable behavior including to lobby for pardons in exchange for pay. as noted with the awesome power and for good it is not often enough used for good and sometimes used in the way it is abusive and congress is right to restore the pardon to its status as a benevolent power. >> thank you you have obviously y been here before. five minutes on the nose.
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the next witness president of common cause and then a grassroots organization dedicated hold holding for values of american democracy with accountable government and to promote equal rights an opportunity for all for those voices in the political process and then with common cause the last 20 years of various capacities and those with respect to administration reforms and the influence of big money and politics and accountability reforms and has written and spoken freely and democracy issues with the influence of money and politics voting rights and conflict of interest reform for elected officials.
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>> thank you for inviting me to testify at the support hearing. i am pleased to be here as president of common cause. in the looking for the open and accountable democracy the pardon power is to advance justice and unfortunately can also be used to obstruct justice this warrants focongressional action that it is without first acknowledging the broader problems of the criminal justice system with mass incarceration wrenching black and brown people and jumping them in steel cages at alarming rates with those
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policies that an equitable intent of black and brown people and communities and until congress passes criminal justice reformorat and xenophobc policies in all levels of the justice system we must encourage the president to have clemency with the injustice as obama did during his term with written testimony. many president trumps pardon with were criminals and corrupt insiders by lying to congress a law-enforcement. and more importantly we believe that she and the associate choose themselves as above the law. and then that accountability
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to subvert that political power his efforts were notorious. special counsel mueller detail this in his report that many of the presidents asked directed at witnessesco with cooperation of the government and suggestions of possible future pardons took place in public view". and michael flynn pleaded guilty to lying to the fbi informer campaign p chairman and encourage witnesses to lie on his behalf and roger stonero convicted of obstructing congress investigation into for an election interference and lying under oath and witness tampering. and how that could be used for legalme bribery public reporting late last year that the department of justice was investigating.
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but then to rein in the power and those to put forward a number strong proposals with a vision of accountability including invalidating pardons issued for coach purposes. even without a constitutional amendment and with that prevention act that was included in the protecting of democracy act providing important transparency and bribery and self protections with the passage of this congress they should also investigate whether president trumps pardon to the associates and others were correctly granted and with
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that independent clemency forwards to advise thell president with that conflict of interest which is on the department of justice with their own prosecution. and then to reflect the country's diversity inside and outside the criminal justice system. and it just takes work to ensure up to the promise and 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 and the racial inequities of the legal system. it is one important part to be a comprehensive approachhair. thinking mr. chairman and i look forward to the committee'ss question. >> my next witness is
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professor of law from houston texas specializing constitutional law and the study of the united states supreme court. the author 59 published articles three books and and lamicus brief on constitutional laww from george mason university school of law firm the allow review and receiving this from penn state university. and with the us court of appeals and those in the us district court from pennsylvania. you are recognized for five minutes. >> thank you for inviting me to testify in a constitutional
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law professor at the college of law in houston. that the courts have a monopoly on interpreting the constitution. and here we will discuss the constitutional need to prevent abuse for the clemency power. in my brief opening remarks havee three primary points. first the important purpose of the pardon power in second to propose statutory regulations and third i will talk to a proposed constitutional amendment that would limit presidential clemency people view those powers that for example in those with the and
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jet just charge but the clemency serves a greater purpose alexander hamilton identified the principal arguments a pardon power those to restore the tranquility of the common-law pardons do not merely help individuals but presidents issue pardons with broader public policies those to serve their purposeyyun
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president jefferson pardoned us under the sedition act president johnson pardon former confederates each one is unpopular in some quarters but in each case he uses pardon power to pursue the common good as he saw it. bringing me to my second point, last summer the committee marked up the abuse of pardon prevention act i criticize this bill a lecture from long island i will submit the post for the record. in short to alter the presidency and trustro keywords second-guess those fear of prosecution nation not fear prosecutors to dictate what the public interest is. this committee is considering hr for proposed constitutional amendment limiting who the president can pardon. i oppose this amendmentitenalalo
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have a single conception of the public interest and if not a proper pardon the public interest is always contestable because no one has institutional knowledge to declare a monopoly of what is on the common good. the president should make important decisions for independence and dispatch and the president so give latitude because of president xi of the greatest latitude to pursue what he sees as a common good limiting the president's power to hamilton referred to as the tranquility of the common-law the a • - - amendment should not be adopted thank you for your time am happy to answer any of your questions. >> i appreciate your testimony professor.neito ur we now would like to recognize her next witness. >> now we go to the next witness, seen them on
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television a thousand times well dozens of times and i never get it right. associate professor public service professor of history and director of undergraduate policy at new yorkun university. focusing on national security. and presidential history. serving as a consultant to the 9/11 commission and also the author of the december 2020 article of atlantics magazine. and then to serve as the founding director presidential library and museum and he is considered the top expert and
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president nixon. the professor brief received his degree from harvard and then john hopkins said international studies ba with a distinct history from yale university. professor you are recognized for five minutes.s. >> and members of the house judiciary subcommittee on the constitution of civil rights and civil liberties for the privilege for testifying to you today. and with the clemency power and the desire to reform is not new to this momentcy in history. is not solely a product of the deeply partisan times and is not the unprecedented knee-jerk reaction. according to the law school democracy in the constitutional clinic, and 41 separate occasions since 1974 members of congress from both parties have introduced legislative proposals designed
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in one way or the other to es executive clemency and over half of these initiatives were introduced before the year 2001. indeedda, 20 years ago almost to the day the subcommittee held a similar hearing on the presidential pardon the catalyst then was concerned and disappointment on both sides of the aisle how president clinton had issued 140 pardons and 36 commutations on a final day in the white house. most notoriously to a fugitive
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facing criminal prosecution for tax evasion his wife was a donor to the clinton library. this caution the subcommittee not to amend the constitution. and that the clinton pardon would be an aberration because of the criticism they inspired "i very much doubt that future presidents will need to be restrained and the use of pardoning power one argued given the example of the final clinton pass. who knows how well today's testimony will age in 20 years let alonear the rest but i think i can say is a historian the history can only act as a deterrent to bad behavior if we all know it. the last two months or 20 years suggest at least to this scholar that far too often we0 were optimistic of the behavior 20 years ago
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clinton's pardons should've led to concrete action now i will leave the president to my fellow panelists that are lawyers but my value is using the statement to share history to indicate and how a few presidents one later became chief justice of the supreme court looked at the matter. the only one to join the supreme court after leaving office where is william howard taft and therefore a unique witness looking at the perspective of 1500 pennsylvania avenue and that of the supreme court. and a law professor before he came back to service and wrote the duty involved is the most difficult one to perform because completely within the discretion of the executive
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and lacking those rules of the exercise that 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 raised was can the party be used in a way to protect those whose actions threatened were very system of justice? the pardon power is unfettered but there is the impossibility one - - possibility of impeachment as a corrective action and deterrent. my belief of corrective action is from nixon from those materials available at the nixon library, . in my prepared statement i will detail and discuss the cynicism and lawlessness attached to nixon's approach to the pardon power. he did not issue those that he
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dangle them that not only became part of article one that was tasked by your committee but no doubt led to perjury. that that is an argument for not plowing this power to be unrestrained particularly in a partisan age with the tools of impeachment is no longer as much of a deterrent of that pardon as our founders who live in a pretty partisan age assumed it would be. thank you for your time i welcome your questions. ak
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>> thank you professor. with a five-minute rule. first according to your testimony that clemency grant overall created the appearance of a two track justice system. so with the appearance of impropriety of the clemency so dangerous to democratic order and the rule of all on - - rule of law generally? >> one of the challenges that we see can have real impact and undermine people's view of government. and with president trumps pardon of his predecessors with those with the we around those
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things that happened during his term. he would dangle pardons as a way tons signal he would excuse anyone who refused to cooperate with the mueller investigation and reword anyone that would like to them. he did just that when he pardoned mike flynn, paul manafort and roger stone and was special counsel mueller's report trump criticized the cooperation with the mueller team and then should be outlawed. president trump said it was very brave the mall manna court did notau flip but i wouldn't take it off the table why would it take it off the table"meanwhile and then to
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raise the possibility of pardon with manafort in interviews with the press telling the new york daily news when the whole thing is over things might get cleaned up for some presidentialde pardons. and then this raises the specter that the president is above the law and can use something like the tool of the presidential pardon in ways what theis not
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founders thought of when they talked about the pardon. but it needs to be viewed in the context that requires the president to uphold the law and the constitution. this is not a tool for his worries how he would be judgedss in the mueller investigation. >> if there is a conflict of
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interest and to say certain changes should not be constitutional iced because of the single conception are there certain classes of people that have the inherent conflict such as family members or associates with the integrity of the clemency process and equal justice for all. >> that is absolutely true mr. chairman there are certain classes of people that the grant of a pardon raises immediate questions about conflicts of interest and lack of public interest. as chief justice marshall said 1833 the pardon power is supposed to be an act of mercy the historical origins of at the framers of the constitution believed it was designed to do as a benevolent power wasn't just a get out of jail free card or to solicit funds for campaign donations. >> my five minutes is about up you mentioned somebody that rscommitted $25 million the pardon of a man in florida doing medicaid fraud to that
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in any way be seen as the statement of difference of opinion and how they view justice? >> getting into the gray area with the committee in the legislationmm with a quid pro quo pardons which are certainly with a more circumscribed view i don't understand how you can pardon somebody to ripped off the government with ill senior citizens have more treatments than they needed. >> my time is over. thank you.
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>> i have a few questions for professor black and to clarify that the supreme court that the pardon power is not subjectt to control it all. >> going back 160 years with garland the supreme court said there is no pardon power and it hasn't been challenged by the supreme court and in the full context of this with house joint resolution and flow number four among other things to invalidate any part of the language taken out of
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the resolution. and with that phrase. >> and then chairman mentioned the word corrupt. this is a word in which people disagree. federal prosecutors have difficulty proving corruptvi intent. and a suitcase full of cash and with that unjust prosecution to have a pardon to get a thing of value so i would be hesitant to push the boundaries and less congress
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with hr 7694 with the prevention act author a bill with criminalizing politics and can you elaborate to explain what the problem is and those of a similar problem that uses theor word corrupt allowing prosecutors to describe the public interest in what is not. briefly corruptedbe t the from where they are with the public interest. the secret is problematic so
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that would take the place of the impeachment serenity and i don't think legislation or the amendment is the way of the authorities. >> i was intrigued by what the professor just testified to that some are so egregious it really does require the constitution or other action. and he noted president clinton the most notorious abuser of the modern era for what he did so what is your reaction to your colleague? even though there are egregious examples does that mean we should change it? >> i think that today to
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impeach a former president and then the president decides to orage of the last month two the political remedies because now what the president considers and then then next judge they said they should just pardon. . . . . this has bg
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warning. thank you for your perspective and scholarship. i have a couple questions for ms. fredrickson. just to narrow down when there could ever be in abuse of important power. and the first question in the president's exercise the pardon power of clemency ever violate or current criminal law prohibiting obstruction of justice? >> thank you for that question. i was neglectful and not saying
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to my colleagues from academia and advocacy what a pleasure it is to be here. i first met josh when he was a young law clerk. but anyway we are good friends and it's good to be here. your question is important and i appreciate it. as i stated in my testimony there is already a wide consensus that certain kinds of pardons could be considered criminal acts. that is in the example used i think the bag of cash, it has a better 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 however one
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of the things 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 that a pardon is a thing of value and so that's why although the law is well understood already to coverve that type of behavior it would be prudent to make it more explicit. >> you've done a great job. you've already answered my first question so thank you for that. my next question goes to the issue of if the president does violate this criminal law and obstruction of justice either in its current form or if it is amended, the department of justice has said if a sitting
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president cannot be criminally prosecuted do you agree with that or do you believe it would have to wait until after the president completed his or her term? >> i don't tend to agree as a legal matter. it makes a certain amount of sense to postpone such an activity till after and it depends on what the criminal act was. however it's generally expected it would happen after because most pardons, especially ones that are highly controversial are issued right in the last moments of a presidency.
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but one could also certainly criminally prosecuted. >> so, i just want to be very clear after the president left office, two avenues to pursue a presidential violation of law of course the congress could impeach itself into the constitution under the grant but there also could be a criminal prosecution brought by the department of justice for a federal prosecutor. is that what you are saying? >> i would also want to quote then senator and future jeff sessions speaking about the pardons that it qualified. that he couldn't find a better example of the quid pro quo
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bribery c and there are many scholars who share that perspective. >> thank you very much. mr. chairman, i will yield back. >> and i am correct in my order, you can predict me i think mr. jordan would be next or mr. mcclintock to seek recognition next. >> mr. jordan if he is ready. >> thank you, mr. chair man. perhaps the most egregious recent example was the prosecution of [inaudible]
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held interviews under false pretenses republicans were singled out from the actions of democrats. it doesn't make these actions any less. there were a number of issues by president trump and his predecessors but i think the importance the matters like this i can't believe the founders didn't give great considerations
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in assigning this. how might these apply to some of the objections we have heard today? >> they modeled the pardon power which was a normal asking power. beyond that during the constitutional convention there were debates on the pardon power whether it be the congressman's approval ofa the pardon and the were voted down. history tells us they used this powere to be he issued pardonsf thosen who were in the whiskey
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rebellion. washington pardoned the people of the whiskey rebellion to make peace. it was controversial in some quarters but a lot of important work and i think it is why one person decides how to pursue the common good. >> i'm sure they must have foreseen a president who would issue. i can't believe they didn't take that into consideration. what would they be saying about the other side? >> there were debates in the philadelphia convention as well as the virginia ratifying convention james madison said
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the remedy in that case is impeachment. apparently now under the prevailing wisdom convicted after he left office, so there's still some teeth in congress to punish him but these are public acts. i don't like secret pardons. that is and how it is supposed to work. >> thank you. i will yield back. >> thank you, mr. mcclintock. next is the distinguished gentlemanxt from florida, the peach state and home of the atlanta airport and one of my favorite chicken restaurants, mr. hank johnson.
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as mr. johnson there? like so many parts of the constitution and so many others. donald trump used the power to shield himself and obstruct justice and to help cronies rather than using that unbridled power to correct injustice and access in the criminal justice system. of the pardon power
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was the egregious and unprecedented and shocked the conscience. ms. fredrickson why didn't the framers have the use of this and the constitution and do you believe that there should be limits on the use of the pardon power? thank you for that question. i don't know the restaurant the chair man was referring to but i would like to find it next time i am in your district. it's hard to know from the discussions exactly the scope of their thoughts around the pardon power but historically it hadn't been considered for use outside of this idea as being used as benevolent power or as an act of grace and so although george mason did raise his concerns and his worries were assuaged by james madison, as was mentioned,
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this was a novel territory in many ways so the idea of the self pardon and things like that were not things that had been contemplated and then that impeachment was seen as a possible approach to that kind of abuse of pardon i think again emphasizing why it is a position to be able toa prosecute or impeach a president after leaving office because otherwise you could never in the theory of that pardons can't be prosecuted, you could never get after that kind of action. there wasn't really a contemplation of the criminal actions that might take place
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which doesn't mean they thought everything possible exempt under the article two section two powers. >> during the trump administration we watched time and time again to keep potential witnesses against him silent. to your knowledge has any other president in the history so abused the pardon power? >> as the professor has noted, there has been a possibility of secret pardons. to some extent we may not know, but it's raised significant concerns about the pardon being used as an obstructive device as a way of obstructing justice and actual proceedings in court
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which i think as i said earlier, it is a very widely held position that those kind of actions are actually crimes in and of themselves and so if the president could pardon somebody for and initial act, the act of exchanging the pardon for the testimony would be a crime separate from the one that was pardoned andpr could be subjecto prosecution. >> let me ask did president trump's abuse of the power cause damage to the democracy and if so, how? >> thank you. iy think it has done damage to the democracy because it sends a message which president trump talks about frequently that he is somehow above the law. he talked about shooting
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somebody in the street and nobody doing anything about it. people who could testify against him being pardoned shows an abuse of the pardon power and it's ones where americans want to see guardrails and common sense solutions. >> after president trump's excesses how should congress ach to curtail the abuse of the pardon power? >> i would repeat that i am not a lawyer so i will speak as somebody thatt studies power asa historian. i believe as chief justice taft wrote that there is a sense that there are checks and balances on the pardon.
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within the framework of our constitutional checks and balances, if we find evidence that a president has either ignored the restraints those restraints are not sufficient and part of that the role and responsibility in maintaining take corrective action and i argued in my testimony not talking about donald trump, but talking about richard nixon you have a body of remarkable evidence of corrupt intent available to everybody in this
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country. he came up with a series of correct ideas for using the pardon. he was going to have an amnesty which had been used. professor blackman talked about the whiskey rebellion amnesty and those after the civil war. there was an amnesty that president carter signed regarding the vietnam war. president nixon reverted that idea in order to find a way to cover releasing the watergate. the members of vietnam veterans against the war they had been
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indicted he said please keep them under indictment. he said we needed them so after the election we can let them go and i will pardon the watergate that way there will be parties on both sides. then the chiefs of staff said we don't have enough of these dissenters in jail is only six of them by implication. he said we can find reason to arrest more vietnam veterans that will put them in jail so that we have a balance we were
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the only president who saw this pardon as a get out of jail free card for the political, personal gain.k and i don't thinko. so. there's enough c corrective actn without talking about the 46th president. about his use of the pardon, about other elements of his administration but i'm not making an argument of the corrective action on the basis of donald j trump. trump.i say there's enough histl data the system wasn't working before him and now the outrage of those worried about the trump era combined with the continuing outrage of those worried about the clinton era you should work
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together. my sense here is the founders made a few mistakes. in fact that generation admitted it. they didn't think there would be partiesnk so they put together n the electoral system that resulted in a tie vote. i thank you for it and with that i will yield back the time. >> thank you mr. johnson, professor, and for the terms this committee is intended to do as a bipartisan approach to correcting a problem that has been bipartisan like misused on
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occasion. i think the chair man. i first want to say thank you for recognizing our colleague. fellow texan and we are all praying for his family, his wife. second, i would like to raise one issue that i think i've heard from one of the witnesses about the extent to which including war criminals the pardon power has been used since the very beginning for political purposes. we can go back to jefferson. every president has done something. that kind of a partisan attack
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on president trump i just want to say that there were some people that might take issue with it like alice johnson, a host of people advocating the president did help so that characterization i think is wrong and unfortunate and shouldn't characterize this hearing. the chair man tried to put together an objective here to try to figure out what we might want to do on the pardon power. i think that is an important part of this. i would also note there's been a number of controversial pardons. i don't think we've talked about every single one of them, but indeed the chairman of the judiciary committee was instrumental in pushing for the pardon of the rosenbergs that were a part of the bombing of the senate in 1983. it's not the first time the capital has been attacked.
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i hope some of the people involved and up in jail like the rosenberg but of this committee they asked bill clinton to pardon these individualsl. who literally blew the top of the senate targeting the members of the body and the capital, so this is obviously nothing new and it's something that i think we ought to be thinking through. one question, and i would like your opinion, as we talked about before one of the primary concerns i have about the grasp of the amendments to the constitution. the texas constitution and 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 so long. it's basically statutory type language. i like and it is important that the united states constitution is not that. it sends out high-level principles and structures, bill of rights and how we order in the balance of power my concern
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about this measure is that it starts getting in the weeds of the constitution and that is a problem. it requires an amendment every time you change your views. if we are going to do anything, why wouldn't we say one of the problems we have here is they tend to occur on january 19th or 20th. they tend to occur right near the lame-duck. maybe if you are going to do a structural limitation that might come across on a bipartisan basis maybe they havefi to be finished prior to the elections or something alongng those line. wouldn't it be better to have a structural reform like that than something that gets in with respect to your family members. just because his brother happened to be the attorney
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general, i don't think that is a good path to apa go down in my . >> that is almost exactly said, sir. >> i appreciate that and i don't know if that is the right solution. i don't think the right path is to go down the specifics and the direction that has been laid out before the committee. i will yield back my time here in a second. let's keep this as objective as wewe can and recognize a significant amount of work to help people in the criminal justice reform coming across.
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they've issued some pardon. next we will recognize another texan please know that we've got some great chickens in texas. i subscribed and i've got the list of the best places in texas, so with that i want to get to ms. fredrickson and ask her a couple of questions. you mentioned as mr. blackburn and the chairman the secret
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pardon is there such a thing, i'm just intrigued by the whole notion. >> i'm not aware of any secret pardons being revealed after the fact. there was a gray area whether pardons could be issued in secret but if somebody is being prosecuted and they want to prevent that, they have to come forward and say they've been pardoned so in a way that is how we would have learned if a secret pardon had been issued. but i would like to, if you don't mind, to speak to the congressman's point about congressman's point about bipartisan of the issue other
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things that i think would be important would be to structure the pardon attorney in a such a way that there would be deep involvement, which would also be transparent proposed by the legislation, the transparency of the pardon power but to structure the role so that there would be a more benevolent aspect to it because i think one of the rightful criticisms is that even in the pardon attorney's office, prosecutors are often very reluctant to move forward. very worthwhile legitimate request for computation and pardon and having a more active presence of those seeking justice for those that have been over incarceration or over
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sentencing for the injustice of the criminal justice system. >> you anticipated my line of questioning. asking about the role of the doj and the pardon or the section one of the reports that were out there was the former president just ignored any recommendations in a close knit role. do you think that was part of the problem with a lot of the criticism that he got in some of his pardons or would there be a fix that we could make to make sure that it's structured so that there is always a role? ..
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>> and it was mentioned how
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many pardons and commutations president obama issue that were about 1700 but there were almost 8000 petitions left unaddressed. may be rightfully so bad again that's because the attorneys office may have some inappropriate needs to be to recognize the criminal justice system. >> with only eight seconds left i yield back. >> i really wasn't thinking and they have the best boiled chicken you are now recognize. >> thank you very much coming to you from the state of minnesota where we are below zero but i am warm inside. but i appreciate the opportunity to take a couple minutes as we covered the
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things but also i wanted to take the opportunity to offer professor blackman on that issue of that legislative involvement in the presidential pardon that something i'm interested in. >> thank you representative them hearing some interference. the role of congress i think is important it should occur after the fact in terms of oversight perhaps as was deemed unjust or inappropriate that's when congress can investigate i would hesitate to put limits on who the president things he should put
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limits it is a pardon the amendment does not define a corrupt purpose but when congress doesn't define a statute took the federal prosecutors to find the statue in the courts and if congress wants to prohibit afi specific act is not something that self-evident something that everyone understands what they argue on the courts. people argue about this things out with this body want to put an amendment to prohibit certain kinds of actions the nation spell them out what does it mean to be corrupt? i think the constitution to teach bribery and there is a
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difference between bribery and corruption and that has a lot of conduct that perhaps is unpopular with that rhtraditional conception. >> i will yield back the remainder of my time. >> thank you stay warm. >> representative bush. >> thank you for convening today's crucial hearing. without question that donald trump did away with all presidential norms his use of the pardon power will forever be associated with nepotism
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and corruption making clear under donald trump for wealthy donors well-connected friends is white supremacist allies to become an extension afforded to the rich and powerful meanwhile with the department of justice thousands with no connection to the upper echelons of power with limited recourse with the devastating uncertainty running rampant that is not the power problem the problem it has not been used enough to correct for injustice born and raised in missouri's first district right here in st. louis convicted on federal drug charges a 28 now 53
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living with hypertension and asthma fearing for his life is covid makes it way through the president his father had cancer and his daughter was only six years old when he was sentenced. his absences deeply felt in his community this is the presidents are leaving behind like byron he was aging behind bars and others had they been sentenced today would be serving much less w time if any at all it was an unchecked power of the presidency is extraordinary power can be a powerful tool freedom it allows presidents to put humanity over agreed injustice over violence and righteousness over power our country is in the midst of a
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national reckoning of racial justice we have oppressed and exploited and policed and criminalized black and brown communities we are in need of national healing requiring transformational change that can be done with the stroke of a pen. you talk about the use of a clemency power addressing discrimination what role in racial disparity in the criminal legal system? >> you are right so many people did not have access to a process with other presidents to be clear and that can be a real challenge. congress can explore legislation to have an independent clemency board and those commutations then to
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remove the process from the doj because there is a conflict when the doj prosecutors reject the prosecutions that they have had. this could be a check and a new vehicle 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 deborahurt who was pardoned in the office of the attorney during the obama administration as caroline said they wanted to move 10000 commutations a couple of problems that she faced as they open the stream for people to get in applications andsing on racial justice
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sentencing they didn't have the resources to add staff because to provide more resources so congress could play a role and second and those making recommendations people inside and outside of the criminal justice system i think that could be a real tool . >> so in your testimony you note those policies like the war on drugs have been devastating communities of color you believe the presidential administration should use the power to remedy these injustices. why do you feel they have been reluctant in this wayy? >> we have deep problems in
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the criminal justice system that must be addressed and clemency is only one tool for racial justice. we have to be looking at all levelse and sentencing guidelines i don't think clemency should be limited to what the president can do it should be done and federal courts across the country. so looking at this from top to bottom reform. >> the next person who played in the nfl so long ago he never played against brady. >> thank you for that perspective. thank you for that. good morning everyone. into my colleagues to the chairman and ranking member this is truly an honor to be with you, you. and my passion for criminal justice reform i have an issue
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for decades what was coming out of thehe juvenile system and i was pleased when americans were given that second chance. a grandmother given a life sentence for the first offense which was 22 years before someone heard her voice and that was president trump but to talk about these pardons the vast majority would go out to those individuals those cases that were championed byy advocates for those in low-level offenses. and with the four founders coming down to amendments the two thirds of the house in the senate on three quarters of the state legislators there is
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a reason has been done this way with passions of politics between every four and eight years with reason and time that's the difference between a democratic democracy and the republic. so with the attempt to change or amend competition only happen 27 times. so we the people are the ones that will make ite,es happen. and even though this is very educational. to understand the process. but this will not be the 28th.
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>> there are only two. the first is the president can only pardon federal offenses not state and second he can't pardon impeachments. >> so going conventional. >> with those proposals and then in a single individual to ensure there is speed and efficiency and we have a lot of people in the congress they don't always agree on things.
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and that for a while. and with president trumps pardons? >> that was quite controversial because we have been involved but the bigger point and then to that conception a public good. i always do the single shared conception. reand president biden look different than president trump did. >>. >> ten or 12 mores minutes.
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so ms. jackson lee would you like to use those five minutes? >>. >> thank you for holding this committee on this very important issue. it hasas been stated the power of the president is unlimited government by the constitution. and with the backdrop of january 6. and those cited by the 45th president may siege to the capital building and with that battle flag. with a joint meeting of congress to announce the winner of the majority of the votes cast by presidential
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electors all the while chanting haying mike pence culminated a abuse of power criminal conduct and unethical behavior and behavior and seen in america on - - america and then they chose to be theth constitutional committee and then to coddle and protect and nurture and build the constitution. we went to acknowledge my rehometown constituents from the south texas college of law and and then of course the witness for professor fredrickson.
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and dealing with the importance of thert primacy power. and over the years to have criminal justice reform to address the tens upon tens and hundreds upon hundreds african-american and or minority persons based upon the drug siege of the seventies and eighties. can you address those historical comments whether or not the president or past president authority could even reach to the point to give pardon to those who perpetrated criminal acts and are january 6. and as a historian can you see parallels between the post trenton post nixon era gained
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add training and potential abuses thank you for your leadership and scholarship as well. >> thank you congresswoman jackson lee. after acquitted president johnson use that power to pardon jefferson davis. and then i get emotional. talk about reconstruction in the united states. because i think we as a people especially people of color we
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have a heavy burden because they did not face the truth of the civil war and then to sweep it under the carpet and i believe the amnesty for jefferson davis help to create that burden. and that was a pardon at the end of his term. and to tell you in january that we might see some pardons of the insurrection. i spent today talking about nixon because i know nixon but we have evidence with a shared body of data. but we can actually all listen. and then with the trump era
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and with that public information there's a lot more to learn. i have a feeling the second impeachment actually deterred president trump from perhaps, perhaps pardoning. i don't have evidence and i don't want to make the claim he would have. but itev will one - - a question of a mask ring as a historian. yes having the power to pardon the insurrectionist as professor blackman would know , the founders did talk about perhaps using the pardon to calm the political environment by issuing amnesty. one element of our history that needs to be stressed is
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our founders did not think of a partisan era. did not think in terms of political parties. and then to have the 12th amendment because i had to correct the current one - - the electoral system because we had imagined parties and how they conceived off limits i think are less powerful because they didn't assume they hadn't thought in this term that's why we think structural reform because it is too powerful of a tool in the way the founders and don't think anticipated because of the change of the balance of power.
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>> so the issue of a pardon is not just the issue for the white house and therefore congress does have a role to expand knowledge from those that could benefit from petitions. and those that are incarcerated and then to know how to communicate at least the very least kim kardashian could provide some of those stories to a man with a w pen. but in for those who have
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suffered to get the stories before the chief executive. and with the president's misuse of the pardon we should think of ways. >> i would like to follow up with a professor. in your study of the impeachment and pardons have you been aware of any secret pardons ever being revealed? >> no. when that issue arose during the last weeks of the trump administration i was learning something. i want to make one other thing clear. i, am worried about the nature of climate of power not an artificial concept. professor blackman, we agree
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in a number of points but talked about dealing with the problem of the power after-the-fact. not just the misuse of the pardon because part of the problem is the president inner circle that they can get away with it. that has an effect on our judicial and congressional system at that time. the people know they will be protected they may not be truthful to congress or truthful with the fbi or the grandi jury. and that permissive climate for presidencies.
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and at the trump administration but there was that permissive climate in the clinton administration the last day of the second term. that permissive climate is a threat to our constitutional system and i encourage congress to be robust to defend the prerogatives. with the importance of checks and balances. it had gotten out of whack. >> president obama issuing 1700 and the system set up it was rather stringent you have to serve at least ten years of your sentence.
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so as any other president set up a system of to go through a criteria doing it in a totally objective manner where they did not know the person? >> i really don't know the net symbols history. for many presidencies with nixon ironically one year before r watergate the white house was trying to create a better system. and that everyone was suspect. but then to undermine the judicial system. and then trying to have the approach so what we've had is a people for afi long time to created in the late 19th century. so that issue when presidents go outside of the system how
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often do they do that? when they let the experts at doj, the civil servants with recommendations and the attorney general plays a role, but then to go outside the system and then i word argue the evidence seems clear now that president trump went outside the system more than his predecessors. usually it produces a controversial pardon. that was a case of president clinton, and nixon's pardons and george h.w. bush. so how do you keep the president within the system? that's really the presidents prerogative. but there are ways to complement.
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>> your atlantic article that i thought was brilliant one of which was the timing. did you consider the president and his first term different than the second term or that they had to get noticed before election day or ten days before to make sure is not a secret pardon and what are the other reforms you suggested we shoulde i consider? >> thank you for asking. >> i believe in deterrence. we are all imperfect beings. the best of a spaces temptation. and with the public responding to which it does. a secret pardon concerns me because then nobody knows about it.
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the presidents to know they can have give up a verdict on the party. was a former congressman's ideals. and with that structural deadline and you do it before the election. and the reason you do that in october the public as to know about these things if you can figure out a way to require disclosure i think that's a good idea although the self pardon why it shouldn't be constitutional and in the nixon. in deciding it probably wasn't and what the supreme court would do and they sent a message that even in the
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appointees. so i really believe i really believe that that sanction should be included and finally i worry about the presidents temptation to pardon those who are political associates lookingg at prohibition should be looked at hardd as well. >> and then i finished my overtime but then the likelihood to amend the constitution that degree of difficulty is great any other
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proposals he has inbl his bill that can pass constitutional muster that others have discussed. >> thank you very much also to the professor. i enjoyed hearing you speak i'm a fan of historians. it's a very important part of the conversation. i think the bill put some important reforms as i mentioned having to do with transparency and ensuring there is a broader dissemination of the pardon as well as the prosecution to be pardoned but also with the primary statutes but it is widely held to already applied to the president that there is no questionre about that but
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beyond that certainly congress should be considering some of these reforms and those challenges in terms of getting closure in the confines of the authority in a way that doesn't with the criminal offense that already seems to bele allowable and telling the president when she cannot pardon somebody it's worth considering and it may be more challenging. >> and that secret pardon and then to be given public disclosure could that be done statutorily and that could be so broad it couldn't be done? >> it is a gray area for
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congress to move forward and with those that were included in the schiff bill and mr. moody's bill. and also that you point of congress' role to understand the constitution which professor blackman says in the interpretive process and send a strongngkm message. and then as a constitutional challenge and then to pursue such reforms and then to stimulate the administration to adhere to them. the administration did not it would provoke its own political backlash. >> thank you for taking that
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opportunity. so should we close up the hearing? >> i just need another five minutes or less. that just quickly it was a productive discussion today and i appreciate that it is important and as we acknowledge people politically agrees on either side. and then to go outside the system with the egregious violations of the pardon power but i just want to ask professor blackman president trump granted 240 pardons and commutations. we have heard how he abuse the pardon power but he used the
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power less frequently than nearly every other president since the turn of the 20th century. so do you agree that that was done from his viewpoint to those prosecutions? >> i think so maybe jack johnson from the early 20th century. but then going across state lines and those that happen to be white and he was charged of having a relationship with a white woman. and spent time in prison. this is almost 100 years ago in the pardon initiative come sometimeme ago.
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>> thank you for mentioning that. but the boxer was convicted by an all-white jury for that crime. and then to recognize the prosecution so the point is to make the point for history for the historians and theer lawyers there is controversial pardon spent most everyry president and then president trump certainly
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did i want to know that for the record and know we are over time and i will yield back i appreciatel it and the object of thee discussion. >> i had my hand up. >> you are recognized. >> thank you mr. chairman i will be brief on my comment. thank you for giving us not only food for thought but a structural roadmap and what we are looking to assess and in actuality with those insurrectionist and it was a frightening possibility of also live for a long time on
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this committee with those members of individuals in the federal prison system predominantly african-american and people of color. it is a painful experience to see your neighbors incarcerated under the mandatory minimums and then cannot be released and then with congress thank you for that went to conclude my remarks this is the importantfo agenda so thank you for your historical perspective and to continue to recognize and with that prospectively. so i look forward to the chairman on this. and then to my late colleague
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and i know he is dedicated in his constituents and thank you mr. chairman and i yield back. >> mr. hank johnson and has the permission of the committee. >> so it would be fair to say president trump was rather stingy in his use compared to president obama. >> absolutely. >> in fact trump pardoned 143 colluded 94 sentences and osama and his eight years
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pardoned 212 and commuted 1715 sentences. would it be fair to say that president trump commuting sentences other than leading others? >> and let them off the hook? particularly on the night of january 19 of those 237 pardons and commutations commuted or pardoned all these people in the wee hours of the morning ten hours before the term ended.
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including a potential witness indictment under for those top supporters in the build the wall scheme. so would it be fair to say so it's best for presidents rather than simply dispensing pardons and commutations out of their back pocket my president trump did? >> thank you for the question. and to give this power the recommendations of actually agree with mr. fredrickson it does make sense to have people to make d those to support the prosecution. >> how many times did president trump rely before
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making any of his 237 commutations. >> i don't know but that number is pretty small. >> how many did president obama do? >> i don't know the number guessing it's a bigger number. >> 1927. >> and professor so how can we best protect the democracy to be undermined by the illicit use as we saw happen under the trump administration? >> first of like to thank you for the question. like to associate myself with the results of my colleague talking about the
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need for the wholesale reform of the criminal justice system and the disparate impact. and the pardon powers one element. in the commutation but having the system inside the justice department or a better d practice as suggested made up of people who are not all prosecutors considering the real injustice that could be done and who sentences could be pardoned. but that is a very soinsufficient because there are so many people that are prosecutedin for low-level offenses already in prison in excess of time unlikely to address all of those through the process any part of commutation.
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but nonetheless it is very important to have a system that does allow the most significant cases to move forward in front of such board or the attorney for the expedited process. >> thank you mr. chairman i yield back. >>. >> representative bush? going once. going twice. this adjourns our hearing thank you to the witnesses for appearing today without objection you have five legislative day to submit questions or additional materials for the record and specifically asked the witnesses if you have thoughts abouten legislation as an amendment to the constitution
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and the statutoryco changes and send the contents to the chair we are trying to drop something that is feasible and has suggestions and then appreciated greatly and that being said and done in memories of congressman right this hearing is adjourned. >> thank you mr. chairman. >> president bidens nominee for attorney general merrick garland testifies before the senate judiciary committee monday for his confirmation hearing. watch the live coverage 9:30 a.m. eastern and listen live on the c-span radio app.
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>> governor, ladies and gentlemen.

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