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tv   House Hearing on a Presidents Clemency Power  CSPAN  February 15, 2021 2:02pm-4:12pm EST

2:02 pm, or listen on the c-span radio app. >> on thursday, the house financial services committee hearing on the recent volatility in the stock price of gamestop and decisions by some companies to restrict trading of the stock. witnesses include the ceo of robin hood, the ceo of citadel, melvin capital management ceo, gabrielle plotkin and financial analyst keith gill. watch live thursday, beginning at noon eastern on c-span, online at or listen on the c-span radio app. >> during a house judiciary subcommittee meeting, a number of legal experts talked about the president's clemency power and when it can be used under the constitution.
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>> i would like to express sadness at the passing of member right. 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. thank you.
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at this point, mr. johnson, if you would like to lead us in prayer regarding the passing of our colleague, you will be recognized. >> thank you, mr. chairman. our colleague has joined us. he knew representative wright as well as anyone else and says he was a good family man and truly dedicated public servant to his constituents into the country. i will lead us in prayer. i pray, heavenly father, for this day and the work you put before us and all of our colleagues. we are reminded this morning of the preciousness of life and how fleeting it is. i pray representative rights example would be one that shines for all of us. he was truly committed to you, his family and his country and all those he served. let that be a shining example for us. let us be reminded of the value
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of one another and life is short and we make the most of it. we pray for the family, his constituents, everyone affected and all of our colleagues and that you bless and continue to bless him. i pray all this in jesus name. amen. >> i welcome everyone's today -- everyone today to that meeting on the means of constitutional clemency power. i would like to remind members, new and returning, that we have established an email dress dedicated to establishing motions and other materials members might want to offer as part of the hearing today. if you would like to submit materials, please send it to judiciarydoc at mail.
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i will now recognize myself for an opening statement. i'm 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 working with the gentleman from louisiana, ranking member mike johnson and other members on the challenging and pressing issues that will be addressing us for months and years to come. while we will no doubt have sharp disagreements from time to time, it is my hope we can disagree in the mutual respect of colleagues. we begin this congress by picking up on topics that we have devoted to hearings two, which is the proper scope and use of the president's constitutional power to grant clemency. the clemency power is outlined in article two, section two of the constitution and clemency power, the purpose is to act as
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a safety valve for our criminal justice system to correct injustices and make sure mercy tempers especially harsh punishment. there are few things more urgent than the need to grant clemency to the thousands who suffer from unjust imprisonment and the collateral consequences stemming from their criminal convictions. perhaps not quince dimly, these pardons -- i have long been concerned with the stinginess with which modern conservatives have granted clemency, considering the war on drugs which goes back to the 1970's, between 2014 and 20 13, i wrote for letters to president obama urging the president and attorney general to become more involved come to grant conditions and to offer more on
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the subject of clemency and grants. i had written the president in his second term and said i had three themes i wanted him to work on. it may be somewhat effective -- it was a little shy on clemency. i also wrote to president trump on the commuting of the sentence of alice marie johnson and i encouraged him to do more than his predecessor. i asked him if he would do more in granting clemency too many cases like that. it is my hope president biden will be an example of how clemency power could be used, especially among those who may be more deserving, whose pleas have not been heard. the subcommittee will push for
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more advanced use of the clemency power and i hope it will be bipartisan because we are talking about freedom and we know both offices appreciate freedom. when considering the proper use inclement seapower, there is another matter to consider, which is whether there are or should be limits on whether the president grants clemency for self-serving reasons or -- such pardons are often not in keeping with the purpose of the clemency power and the subcommittee considered whether a president could issue a self pardon and the consensus among the witnesses at that hearing, including the one requested by the minority was that on balance, the constitution would prohibit self pardons. during the nixon administration, the department of legal counsel
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concluded self pardons would be unconstitutional because of the basic principle that no one should be a judge of his or her own case. questions about the proper scope of common seapower took on grace and -- greater urgency during the recent presidency. no president is -- the manner in which president trump use clemency power raised the concern he may have been willing to do just that to protect himself and his political allies. for example, during the investigation of the special counsel, robert mueller and the possibility of russian interference, president trump dangled the possibility of pardons for witnesses who refused -- who refused to cooperate, specifically paul manafort, michael flynn, is national security advisor, and roger stone, senior campaign advisor. ultimately, he would pardon all three of these individuals, stemming from the mueller
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investigation during his final weeks in office. in addition, president trump use the clemency power and other potentially self-serving ways as most of those who receive clemency have some kind of special access or political or personal connection to him. that seemed to be the thread rather than the crime and sentence. this included cap -- come and see for for republican members of congress, one of whom i was close to, nevertheless, they had been convicted of various criminal offenses ranging from bribery and insider trading to the misuse of campaign donations. charles kushner, whose son-in-law father and steve bannon, who was awaiting trial on fraud charges to fund the wall on the u.s. mexican border were also pardon. president trump also reportedly discussed pardoning himself and his children in his final days in office.
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we presume he did not do that, but we don't new that -- don't know that for a fact because there is such a thing as a secret pardon, which is something we should talk about today. a proposed amendment would prohibit presidents from granting clemency for themselves, per habit clemency grants, administration officials , or anyone who committed an offense -- it also has a catchall provision making any pardon invalid for corrupt purposes. i introduced similar resolutions. while it precludes clemency for certain [indiscernible] transparency and the timing of pardons and commutations.
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specifically, i would like to hear the witnesses views about requiring public notice of pardons to get around the issue of possible secret pardons or commutations that might be issued before election day. i think they had suggested some kind of prohibition but i have to have some time and notice, so if it was a secret pardon, that would have to be addressed. public notice of pardons so voters have notice, not only in a presidential election year but in the first term. amending the department of justice respecting the comments he process. this will not be our last look at the clemency process, including from a criminal
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justice reform perspective. i thank our witnesses for being here and i look forward to the discussion. now i would like to recognize the gentleman from louisiana for his opening statement. >> i appreciate that. article two section two of the constitution says the president shall have the power to grant reprieves and pardons except in cases of impeachment. some presidents have used this power more than others. they do this based upon their own conceptualization of justice and most of the country has always respected that. president trump issued 237 total pardons and commutations in his
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time in office. by comparison, president obama issued 1927 pardons and commutations. president bush issued 200 and president clinton issued 417. many of president obama was pardons were controversial, including chelsea manning, who endanger national security by leaking classified information. a top leader in terrorist and james cartwright, who lied to federal investigators. president bush commuted the sentence of lewis scooter libby, which was controversial. president clinton issued pardons to his own brother for drug-related offenses to a fugitive political donor, mark ridge, to his cia director and
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several individuals connected to the scandals in their own administration. most recently, president trump pardoned roger stone and michael flynn. all of these presidents issued pardons that were controversial with the opposing party and many segments of the public. but despite the fact, the majority introduced the abuse of power prevention act last congress. republicans explained the bill was unconstitutional in a committee markup last july. nevertheless, the committee favorably reported the bill on a partyline vote. recently, the chairman introduced the proposed constitutional amendment he just mentioned to narrow the pardon power. i have several significant concerns with this amendment. among other issues, it vaguely declares that pardons issued for a corrupt purpose shall be invalid. the problem there is it is vague
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and overbroad language and is not a framework or workable standard for what amounts to a corrupt purpose. i'm sure the majority would argue certain pardons issued by president trump or issued for a corrupt purpose while most republicans would argue they promote justice. this issue of partisan fashion is precisely why the founders structured the pardon law exactly as they did. alexander hamilton argued against the pardon power because he said when the offense proceeded from causes which inflamed resentments of the major party, they may often be found obstinate and inexorable when policy demanded a conduct of forbearance and clemency. james madison similarly argued legislative involvement in the pardon power we would be
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improper because the bodies -- in the moment of vengeance, they forget humanity. similarly, a narrow pardon powder -- pardon power was proposed in the constitutional convention -- for good reason, that [indiscernible] the pardon power is best vested in the president as it was designed in the constitution for the president to exercise as they see fit based on their personal judgment and notion of justice. i thank our witnesses for appearing this morning. i look forward to your testimony and i hope we can have a productive conversation. with that, i yield back. >> thank you, mr. johnson. unanimous consent, to admit the chairman's statement into the record. with that, his statement will be
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entered into the record. the ranking member, mr. jordan is present and if he chooses to make a statement, he is recognized at this point. >> mr. chairman, i'm fine. thank you. >> now we will go to witness introduction. we welcome our witnesses and thank them for participating in today's hearing. i will introduce each witness and after that introduction will recognize the witnesses for his or her own testimony. please note your written statement will be entered into the record in its entirely. we ask you to summarize your testimony in five minutes. in the absence of a proverbial timing light, i will note when five minutes have elapsed and bang my gavel, all -- otherwise known as a louisville slugger miniature bat. there will also be a timer on your screen, so please be mindful. i would like to remind all of
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our witnesses that you have a legal obligation to provide truthful testimony to the subcommittee. any for statement you make may subject you to prosecution under section 1001 of title 18 of the united states code. our first witnesses carolyn fredrickson, the distinguished visitor from practice at georgetown university law center and a senior fellow at the brennan center 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 constitutional society for law policy and has had an extensive career, serving a special assistant to the president for legislative affairs in the clinton administration and cheap staff -- chief of staff to maria cantwell and counsel for senator tom daschle. she served as a law clerk for
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james l looks on the second circuit. she received her jd from columbia university school of law where she is a stone scholar and served as editor of the columbia law review. she received her ba summa can lata from yale university. you are recognized for five minutes. >> thank you so much, mr. chairman. i'm pleased to have the opportunity to appear before you today on this important topic. as has been said, the pardon power gives the president the power to address injustices and show mercy. however, the brett of this power has made it susceptible to misuse. just before leaving office in 1992, president work -- president george h w bush farmer secretary of defense caspar weinberger and five others convicted in the iran-contra scandal. president clinton's pardon to mark ridge, a fugitive felon indicted for fraud and tax
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evasion and the ex-husband of a major donator -- donor to the clinton foundation and hillary clinton's senate campaign was rightly criticized. but former president trump has gone even further in granting questionable pardons. on his final day, trump pardon 74 people and commuted the sentences of 70 others, including a person convicted of fraud in medicare to the tune of $75 million. the pardon power was intended to be a benevolent power, but there are several well-recognized limits on its exercise. it only extends to federal crimes. it may not be used to obstruct justice, and a self pardon is constitutionally suspect. congress could reform the pardon power by constitutional amendment. it is the chairman's proposal -- it would limit the pardon power to grant such a pardon to himself, his family, his administration officials or
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campaign advisors. it would prevent pardons undertaken for crimes committed in cooperation with the president. the chairman rightly states the power often operates like a get out of jail free card more than a grant of mercy to those who have been clear victims of injustice. congress could reform the pardon power by creating statutory limits. there is a bill introduced by representative adam schiff that would present to important reforms. his bill would require the doj and president provide congressional materials related to the prosecution as well as the pardon and would strengthen the bribery statute by clarifying its application to the president and vice president that it is an official act to grant a pardon and that such a grant is a thing of value.
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the amendment would assure -- the bill would ensure any offer of a pardon or a pardon itself would be a criminal act if part of a corrupt exchange and declare presidential self pardons in valid. there's reason to believe this legislation would withstand constitutional challenges. it is widely accepted congress may impose penalties on a pardon intended to bribe a recipient. since the legislation does not attempt to circumscribe the grant of a pardon and does not tread near the article to powers and the doj has issued opinions consistent with this understanding, in october 1995, there was an opinion that stated if the application of the bribery statute raises no separation of powers, let alone a serious one. according to olc, the constitution confers no power in the president to receive bribes specifically for any increase in the compensation which is what a
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bribe would do. with a respect to a presidents pardon of him or herself, as is well known, in 1974, there was another opinion that stated such a pardon is illegitimate. another bill meriting consideration would require the president to publish the issue date and fulltext of each pardon or reprieve granted. even if not limiting to him or for what reason they pardon could be granted, such legislation would bring intention to ill considered grants. another area where congress could unleash the pardon power is its oversight function. after president clinton pardoned mark rich, congress engaged in a thorough and bipartisan investigation. though no criminal charges were issued, congress did uncover some highly question all
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behavior, including efforts by president clinton's effort to lobby for his brother. the president's power is in awesome power, a power for good. it is not often enough used for good and is sometimes used for ways that is abusive and congresses right to take up the task of restoring the pardon as a benevolent power. thank you. >> thank you. you have obviously been here before because you know how to do five minutes on the nose. our next witness is the president of common cause, a position she has held since 2016. it's a nonpartisan, grassroots organization dedicated to upholding the core values of american democracy working to equate open and honest accountable government and support equal opportunity for all and he put a goal process.
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she has been with common cause for the last 28 years in various capacities. in that time, she worked to expand common causes efforts with election reform, curbing the influence of big money in politics and ethics and accountability reforms. she has written and spoken frequency -- frequently on democracy issues about the influence of money in politics, voting rights, ethics, and conflict of interest reforms. you are recognized for five minutes. >> thank you for inviting me to testify at this important hearing. members of the subcommittee, i
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am pleased to be here as president of common cause, a national nonpartisan organization with more than 1.5 million reporters working for an open and accountable democracy. the pardon power is a potent tool for justice. unfortunately, it can also be used to obstruct justice. i hope my testimony today will help you. i must say that executive clemency is complete without first acknowledging the broader problem of our criminal justice system. systems of mass incarceration continue to ravage communities, often violently wrenching black and brown people out of their homes and dumping them in steel cages at alarming rates. races public policies have disparate impact on black and brown people and committees. until congress passes sweeping criminal justice reform that routes out racism, classism and xenophobic practices at all levels of the justice system, we must encourage the president to use clemency as a tool to chip away at injustice as president obama did during his term and i
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discussed further in my written testimony. but elections have consequences, including those receiving clemency. many of president trump's pardons were for wealthy friends, including war criminals, corrupt insiders and others who obstructed justice by lying to congress and law enforcement. this is a challenge we have seen with other presidents. we believe president trump abused the pardon power to send the message that they use dave -- they view themselves as above the law. president trump signaled his intent to award obstruction and subvert accountability to further his own plug power. his efforts were open and notorious. special counsel or mueller detail this in his report, noting that many of the presidents acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons took place in public
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view,". among this pardon, michael flynn, who twice pleaded guilty to lying to the fbi and former campaign chairman, paul manafort, who encouraged witnesses to lie on his behalf. roger stone, convicted of obstructing congresses investigation and lying under oath and witness tampering. there are also serious questions about how the pardon power could be used for bribery for pardon schemes and public reporting last year ported the department of justice was investigating. there steps congress must explore to limit use of the pardon power. some reforms would require a constitutional amendment. hj resolution for its forth a number of strong proposals to curb self-dealing and invasion of account ability, including validating pardons issued for corrupt purposes. even without a constitutional amendment, congress has the power to otherwise check the
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abuse of the pardon. the abuse of the power of pardon prevention act in the 116th congress which was included in the protecting democracy act rights oversight, transparency, and anti-self-dealing intentions. we urge that it passes this congress. in the meantime, congress should investigate whether president trump's pardons to his associates and others were otherwise properly granted and share what it learns with the american people. congress should look at the idea of independent clemency boards to advise the president. this could illuminate biases and conflicts of interest inherent in the current system which often relies on prosecutors at the department justice to serve as a check on their own prosecution. members of the federal, seaboard should reflect our countries diversity and be representative of stakeholders inside and outside the criminal justice system. mr. chairman, i believe
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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 protect the rule of land and the racial inequities in our legal system. the pardon power is one important part of what must be a conference of approach. thank you, mr. chairman and i look forward to the committee's questions. >> thank you very much. i appreciate your testimony in service to common cause. our next witness is mr. josh blackman, a professor of law at the south texas college of law and houston, texas where he specializes in constitutional law the law in 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 is the author of a casebook on constitutional law. he received his jd magna come loud from george mason university school of law where
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he served as the editor of the george mason law review. he was a law clerk 40 honorable sandy bides for the sixth circuit and kim gibson of the district court of the western district of pennsylvania. you are recognized for five minutes. >> thank you. chairman cohen, ranking member johnson, thank you for inviting me to testify. many miss josh blackman and i'm a constitutional law professor at the college of law in houston. people can say the courts have a monopoly on interpreting the constitution. they don't. here, we will discuss the constitutional need to prevent abuse of the clemency power. in my brief opening remarks, i have three primary points.
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first, i will discuss the important purpose of the pardon power. second, i will propose statutory regulations to the pardon power and third, i will talk of a proposed constitutional men meant that would limit residential clemency. people often view pardon power is more of a correction -- the court made an error by posing an unjust sentence or prosecutors pursued an unjust charge. as originally understood, clemency could serve a greater purpose. in federalist 74, alexander hamilton identified a principal argument to the pardon power -- restoring the tranquility of the commonwealth. pardons do not merely help individuals. presidents issue pardons for broader public policy. president washington pardoned
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participants in the whiskey rebellion. president jefferson pardon those convicted under the sedition act. after the civil war, former confederates were pardoned and these were unpopular in some quarters but the president uses pardon power to pursue the common good as he sought. this brings me to my second point. last summer, this committee marked up the abuse of pardon per venture backed. this proposed bill would alter the presidency such that he would second-guess his official actions were fear of prosecution. congress should not empower federal prosecutors for the power of the criminal process to dictate what the public interest is.
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this committee is considering hr for, a proposed constitutional amendment that would limit whom , the president can pardon. i oppose this amendment. it attends -- intends to constitutionalize a single segment of the public interest -- what is and is not a pardon. no one has the institutional knowledge to declare a monopoly on what is in the common good. the president should be able to make important decisions with independence and dispatch. the president should have the latitude to issue pardons because the president should have the greatest latitude to pursue what he sees as the common good. it would limit the presidents power to promote what hamilton referred to as the tranquility of the commonwealth. this amendment should not be adopted.
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thank you for your time and i would be happy to answer any of your questions. >> thank you. appreciate your testimony. we would now like to recognize our next witness. i'm going to ask you to help me with the pronunciation of your name. our next witness, i have seen him on television dozens of times and i never get his name right. he's a clinical associate professor of history and director of the undergraduate policy major at new york university. he focuses on national security and intelligence policy, international and presidential history. he served as a consultant to the 9/11 commission.
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he is the author of a december 2020 article entitled trump's pardons made the unimaginable real. he served as the founding director of the richard nixon presidential library museum and i would guess he is considered the top expert on president nixon. he received his ma with distinction from johns hopkins school of studies and a -- you are recognized for five minutes. >> i wish to thank the chair, the ranking member and numbers -- members of the house judiciary for the privilege of testifying before you today. concerns about the breadth of the presidents come and see power and the desire to in some
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clemency power 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 schools constitutional clinic on 41 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. over half of these initiatives were introduced before the year 2001. in deed, 20 years ago almost to the day, this subcommittee held a similar hearing on the presidential pardon. that 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
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house. most importantly, one to mark rich, a fugitive facing criminal prosecution for tax evasion, his fort -- whose former wife was a donor to the clinton library. all of the panelist two decades ago cautioned this subcommittee not to amend the constitution, reflecting confidence the clinton pardon would be an aberration because of the criticism they had inspired. " i very much doubt future presidents will need to be restrained in their use of pardon power, given the example of the final clinton grant." i quote our distinguished predecessors with utility. who knows how well today's testimony will agent 20 years? i think i can say as a historian that history can only act as a
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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 we were far too optimistic 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 discussion to panelists who are lawyers. perhaps my value is in using the statement to share some history indicating the perils of an 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 join the supreme court after leaving office was william howard taft. therefore, he is a unique witness on working with the
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pardon from the perspective of 1600 pennsylvania avenue and that of the supreme court. in a book that he wrote before he came back to federal service and wrote the duty involved in the pardon power is the most difficult one to perform because it is completely within the discretion of the executive and is lacking in rules of this exercise. the only rule it can follow is you 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 pardon be used in a way to protect those whose actions threatened our very system of justice? he concluded yes, the pardon power is unfettered. but he added there's always the
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possibility of impeachment. as a deterrent. my belief in the need for corrective action is founded in what i learned about our nations 37th president, richard nixon, from publicly available materials when i was director. i will detail or discuss the cynicism and lawlessness attached to president nixon's approach to the pardon power. though he did not issued the pardons he dangled, it became not only part of article one past by your committee in a bipartisan manner but no doubt lead to perjury. therefore, regardless of our 45th 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 is no longer as much
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of a deterrent on that pardon as -- on bad pardons as our founders who lived in a pre-pardon age assumed it would be. thank you for your time. i welcome your question. >> thank you. i appreciate you being with us and your life's work. i will take the first round of questions. we have the five minute rule and i will recognize myself for five minutes. i would like to ask -- according to your testimony, president trump's clemency grants created the appearance and reality of a two track justice system -- one for the presidents associates and another one for everyone else. the appearance of impropriety in the granting of clemency, -- why is it so dangerous to the rule of law generally? >> thank you for the question.
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one of the challenges 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 pardons granted to the wealthy and well-connected, we saw other presidents do this -- was the challenge around many things that happened during his term. he dangled pardons as a way to signal he would excuse anyone who refused to cooperate with the mueller investigation and reward anyone willing to lie to them. he did just that when he pardoned mike flynn, paul manafort, and roger stone and as
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recounted in the mueller report, trump criticized cooperation with the mueller team, stating flipping was not fair and almost ought to be outlawed -- that is a quote. president trump comment that it was brave that his former campaign chairman, paul manafort, did not flip and in response to a potential pardon, he said it was never discussed, but i would not take it off the table, why would i take off the table? president trump's lawyer, rudolph giuliani, raise the possibility of a pardon with an interview to the press telling the new york daily news come when the whole thing is over, things might get cleaned up with some presidential pardons. these kinds of actions raise the specter that the president is above the law and can use something like a tool the
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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 provisions of the constitution that requires the president to uphold the law and the constitution. this is not a tool to put his -- his own worries about how he could be judged in the mueller investigation in terms of russian interference and the activity is undermining. >> let me go to ms. fredrickson. although you would be just as good a witness for this. the appearance of a conflict of interest is important.
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professor blackman said certain changes should not be constitutionalize. because of a single conception of public interest. aren't there certain classes of people that would have an inherent conflict such as family members or other close associates that it would destroy the leaf in the integrity of the presidency and clemency process and equal justice for all? >> i think that is absolutely true. there are certain classes of people for whom the grant of a pardon raises immediate questions about conflicts of interest, self interests and lack of public interest. as chief justice marshall said in 1833, the pardon power is supposed to be an act of mercy.
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that's the historical origins of it. that's what the framers of the constitution believed it was designed to do. it was not the power to grant a get out of jail free card or solicit funds for campaign donations in exchange for a pardon. >> you mentioned in your testimony about someone who committed 25 million dollars worth of fraud and there was something -- a pardon of a man in florida who had done medicaid fraud and a man in another state who had done fraud. tens of millions of dollars. could that in any way be seen as one of the statements about a difference of opinion about the political parties and how they achieve justice? >> that's starting to get into the gray area. the committee in legislation was
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focused on quid pro quo pardons, which are certainly out of bounds. i think a constitutional amendment could clearly get at a more circumscribed view of the public interest. i don't understand how it could 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 is hard to contemplate how that could be in the public interest. >> thank you. my time is over. i would like to turn it over to ranking member, mr. johnson. >> i have a few questions for professor blackman. i wanted to clarify something -- isn't it true the supreme court has long affirmed the president's pardon power is not subject to legislative control at all? >> absolutely. going back almost 160 years.
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the supreme court held there were basically no limitations to the pardon power and this hasn't been challenged and has been affirmed in other cases -- i think your reading of the case was correct. >> thank you for clarifying that. i think it's important for the full context of all of this. you publicly oppose house joint resolution for among other things -- it would invalidate a pardon for a corrupt purpose. that's the language taken right out of the resolution. what is your understanding of that phrase and why is it so problematic? >> the chairman mentioned the word corrupt -- this is a word on which people disagree. federal prosecutors often have difficulty proving what is a corrupt intent. the classic example -- i gave a
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politician a suitcase full of cash in exchange for a public service. that is corrupt but when we are talking about something a little more blurry, when someone says there's an unjust prosecution and in order to and unjust prosecution we need to end the -- issue a pardon. that could be a thing of value. i would be hesitant to push the boundaries of what is and is not a bribe in a constitutional amendment. >> it's not the first time our democrat colleagues have used pardons -- adam schiff introduced the abuse of the pardon prevention act and this committee reviewed that last summer. professor, you authored an article concluding the bill
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would have criminalized politics. can you explain what the problem is there? >> the statute suffers from a similar problem -- it uses this word corrupt and allows federal prosecutors to decide when the president is acting in the public interest and when he's not. corrupt is going to be the opposite of whatever is in the public interest -- i agree with the chairman that secret pardons are problematic and i'm going to go through that one but the -- if there is an abuse of power impeachment remedy james madison , said so 200 years ago -- i don't think that amendment is the right way to limit this authority. >> i was intrigued by what the
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professor testified to end the premise that there are some parts are so a gracious and that would require some corrective action and he noted president clinton, who is probably the most notorious abuser in the modern era of the pardon power. though there are some very egregious examples, does that mean we should change the constitution? >> i think i agree with the professor's remarks. i think it should be after the fact, not before the fact. we have seen you can impeach a former president, so that is a new rule. the -- in advances problematic. do i issue a pardon or two i'd not? -- do i issue a pardon or do i not?
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some federal prosecutor, the next robert mueller who tries to indict me, that is a chilling effect that i think is problematic. >> let me ask you a mechanical question. what is the role of the department of justice and the recommendations they make? >> the doj is advisory. they make a recommendation but it is the president and president alone who decides whether to check yes or no on that pardon box. >> i yield back. thanks to all the witnesses. >> thank you, mr. johnson. next up is the new member from north carolina. you are recognized. >> thank you so much, mr. chairman and thanks to all the witnesses. this has been a fascinating warning and thank you for your perspective and scholarship.
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i have a couple of questions. just to narrow down when there could ever be an abuse of the pardon power. the first question is can the president exercise of clemency ever violate our current laws prohibiting obstruction of justice or bribery? >> thank you very much for that question. i was neglectful not saying to my colleagues from academia and advocacy what a pleasure it is to be here. josh and i go way back. i first met josh when he was a young law clerk. we are good friends and it is good to be here. your question is a very important one and i appreciate it. as i stated in my written testimony, there is wide consensus that certain kinds of
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pardons could be considered criminal acts. in the example professor blackman used, the bag of cash or the suitcase -- i like bag of cash better -- it's a better visual. the bag of cash in exchange for a pardon -- most scholars, constitutional experts believe that is a criminal action and efforts to obstruct a judiciary proceeding, to suborned testimony of a witness for example. one of the things the legislation would do is clarify the statute to make it even more clear the bribery statute applies to the president and vice president and then a pardon is a thing of value. although the law is well understood to cover that, it
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would be prudent to make it more explicit. >> you have done a great job because you answered my second question in answering my first question. my next question goes to the issue of if the president does violate criminal law or obstruction of justice even in its current form, if it is amended, the department of justice has said a sitting 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 with that as a legal matter. it makes a certain amount of sense to postpone such an
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activity and it really depends on what the criminal act was. however, it is generally expected in cases of abusive pardon, it would happen after a presidency because most pardons, especially ones that are highly controversial like the mark rich pardons are issued even on the fading last moments of a presidency. i think professor lachman seems to concede one can impeach a president, but one could certainly criminally prosecute. >> i want to be very clear with this last minute. after the president has left office, you see two avenues to pursue a presidential violation of the law for obstruction of justice.
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congress could impeach, that is in the constitution after the grant of the pardon power but there also could be a criminal prosecution brought by the department of justice for a -- or a federal prosecutor. prof. fredrickson: yes, and i would want to quote jeff sessions. he could not find a better example of quid pro quo bribery. and it was a criminal act. there are many conservative scholars who share that perspective. >> thank you very much. mr. chairman, i yield back. >> thank you. if i am being correct in my -- if i am incorrect in my order, mr. johnson, you can correct me. i think mr. jordan would be next or mr. mcclintock.
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who wants to seek recognition next? >> let's go to mr. jordan if he is ready. >> thank you, mr. chairman. perhaps the most egregious recent example of politicized prosecution is the mueller proceeding of the prosecution of michael flynn, falsifying documents and withholding material evidence from the court and held interviews under false pretenses and operated in an entirely partisan manner. republicans were singled out where the actions of democrats were ignored. just because the targets of the process were associates of the
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president doesn't make it any less egregious or less offensive . there were a number of pardons issued by president trump and his predecessors that i have cringed at. i think the importance of the pardon power in regulating justice argue against any limitations. i cannot believe the founders did not give great consideration to the frailties of human nature in assigning this power. professor blackman, could you discuss in greater detail the reasons this was written and how they might cover some of the objections we are today. prof. blackman: the framers
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modeled the pardon power after their prerogative, the king which was basically almost absolute power. you can pardon only federal offenses and cannot pardon impeachment. there were debates whether congress had a role in the pardon power, whether congress must approve of a pardon and those rules were voted down. the framers viewed this power to be residing in a single person. george washington issued pardons to those in the wister rebellion. washington pardoned the people in the whiskey rebellion to bring tranquility to the nation. it was controversial but it was important work. it is because one person, the president, should decide how to pursue the common good.
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>> they must have foreseen, human nature being what it is, there would be a president who would issue a pardon for partisan reasons or personal reasons. i can't believe they did not take that into consideration. what would they be saying about some of the arguments from the other side? prof. blackman: there were debates in the philadelphia convention about the abuse of pardon power. george mason, who was invoked earlier was very much worried , that the president would use his pardon to cover up his own crimes. james madison said the remedy in that case is impeachment that i think that's the right answer. the president could be convicted and removed from office and under prevailing wisdom, he can be impeached after he leaves office. i don't like secret pardons. that is not how it is supposed to work. it is a public act and the
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president should be judged politically for his actions. >> i yield back. >> thank you, mr. mcclintock. next is the distinguished gentleman from the great state of georgia, the peach state and home of the atlanta airport and one of my favorite chicken restaurants, mr. hank johnson. is mr. johnson there? >> just trying to get unmuted. i want to thank you, mr. chairman, for holding this hearing and i look forward to serving on the subcommittee and participating in the important work of repairing our constitution. like so many parts of our
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constitution, the pardon has been repeatedly abused over the last four years. in the cases of roger stone, paul manafort, michael flynn and steve bannon and so many others donald trump use the pardon , power to shield himself and thus obstruct justice and help cronies rather then using that -- 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 conscience. ms. fredrickson, why didn't the framers use limits on the pardon power in the constitution, and do you believe there should be limits on use of the pardon power? prof. fredrickson: thank you for that question. i do not know the restaurant the chairman was referring to.
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i would like to find it the 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 had not been considered for use outside this idea of being used as a benevolent power or as an act of grace. although george mason did raise concerns and his worries were assuaged by james madison, as was mentioned this was novel , territory in many ways because the king himself was not subject to prosecution in the normal court system and the idea of a self pardon and things like that were not things that had been contemplated. then as professor blackman said, impeachment was seen as a
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possible approach to that kind of abuse of a pardon. emphasizing why it is a legally correct position to be able to impeach a president after leaving office. otherwise, you could never, in the theory that pardons cannot be prosecuted, you could never get after that kind of action. i think there was not really a contemplation of the kind of criminal actions that might take place, that a pardon might be used for, which might mean the -- which does not mean that the founders thought everything possible a president could do was exempt under his section two powers to pardon. >> >> let me ask you this -- during the trump administration, we watched time and time again as president trump shamelessly dangled the promise of a pardon to keep potential witnesses against him silent.
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to your knowledge, has any other president in history of this country ever so abused the pardon power? prof. fredrickson: as professor blackman has noted, there has been the possibility of secret pardons, so to some extent, we may not know. certainly, this past four years has raised significant concerns about the pardon being used as an obstructive device, as a way of obstructing justice, as a way of obstructing actual proceedings in court, which as i said earlier is a very widely held position, that those kinds of actions are crimes in and of themselves. therefore, even if the president could pardon somebody for an initial act, the act of exchanging a pardon for
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suborning testimony would be a crime separate from the one that was pardoned by the president and could be subject to prosecution. >> thank you. did president trump's abuse of the pardon power do damage to our democracy, and if so, how? >> thank you. i think it has done 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 and no one doing a thing about it. pardoning people who could testify against him shows an abuse of the pardon power and is one where americans want to see guardrails put on again and common sense solutions to tackle some of these issues. >> thank you.
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after president trump's excesses, how should congress act to curtail the abuse of the pardon power? prof. naftali: i want to repeat that i am not a lawyer. i want to speak someone who studies power as an historian. i believe as chief justice taft wrote, there is a sense that there are checks and balances on the pardon and we should see the pardon within the framework -- i'm going beyond what the chief justice said. within the framework of our constitutional checks and balances, and if we find evidence that a president has either ignored the restraints our founders hoped would be on him or her, we find those
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restraints were not sufficient to ask ourselves whether congress as part of its rules and responsibility in maintaining the system of checks and balances often take corrective action. i argued in my testimony not talking about donald trump, but talking about richard nixon -- if you have a body of remarkable evidence of corrupt intent available to everybody in this country, and what richard nixon understood was that no one would stop him. he came up with a series of corrupt ideas for using the pardon. he was going to have an amnesty, pervert the concept of amnesty, which had been used previously in our history. the amnesty for the whiskey
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rebellion, amnesties after the civil war, amnesty that president carter signed regarding the vietnam war. president nixon perverted the idea in order to find a way to cover releasing -- he looks for democrats, antiwar dissenters who had been indicted for planning to disrupt the 1972 republican convention. he said please keep them under indictment. this is on tape. he said we need them under indictment so after the election, we can let them go and pardon them and i will pardon the watergate burglars. that way, there will be pardons on both sides. then his white house chief of
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staff said we don't have enough of these dissenters in jail. there were only six of them and there are seven watergate burglars. he said we could find reasons to arrest more vietnam veterans, dissenters, and put them in jail so we have a balance. that is absolutely the most corrupt way of thinking of a pardon, but they thought this way. the question we need as americans to think about is whether the nixon team were an aberration? the only corrupt people ever to be in the white house? was president nixon the only american president who saw this pardon as a get out of jail free card, as a way of manipulating the system for political gain. and i don't think so. regardless of what you think about donald trump, and i making this point that there is enough
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evidence for corrective action without even talking about the 46th president. my view of the 46th president is public. i've written about my thoughts on his use of the pardon, but i'm not making an argument for corrective action on the basis of donald j. trump. i say there is enough historical data that the system was not working before him and now the outrage of those worried about the trump era should combine with the continuing outrage of people worried about the clinton era. you should work together in my preferred approach would be a constitutional amendment, but i am not a lawyer. my sense here is the founders, god bless them, the founders made a few mistakes. in fact, that generation is -- admitted it. they did not think there would be parties.
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they put together an electoral system that resulted in a tight vote -- tie vote. >> i think your testimony is quite elucidating and i.t. white fort -- and i thank you for it. >> thank you for framing it in terms with a bipartisan approach. >> i want to say thank you for recognizing our colleague. we are all praying first family, his wife, susan. secondly, i would like to raise one issue that i think i heard
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from one of the witnesses about the extent to which pardons are used to reward wealthy friends, 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. it cuts across both lines. that partisan attack on president trump, i think there are people that might take issue with it, a host of people. criminal justice advocates that president trump helped. that broadbrush characterization is wrong and unfortunate and should not characterize this
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hearing. the chairman is trying to put together an objective hearing. that is an important part. i would also note, there have been a number of controversial pardons. i do not think we have talked about every single one of them. the chairman of the judiciary commit me -- committee was instrumental in pushing for the pardon that were part of the bombing of the united states senate in 1983. it is not the first time the capitol has been attacked. i hope some of the people involved and up in jail -- end up in jail. this is nothing new and something i think we ought to be thinking through. the other question i have, one
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of the primary concerns about the draft amendment to the constant -- constitution. the texas constitution is 400 pages. it is statutory type language. i believe it is important that the u.s. constitution is not that. it sets out structures of government, civil rights, the balance of power between washington and the states. my concern about this measure, it starts getting into the weeds. i think that is a problem. it requires an amendment and amendment and amendment every time you change your views. why wouldn't there be something that says, one of the problems, these pardons seem to occur on
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january 19 or january 20. maybe you could do a structural -- maybe say pardons have to be finished prior to elections of the president's term. if we are going to have a reform, wouldn't be better to have a structural reform? are we going to say that john kennedy could not have pardoned bobby kennedy? just because his brother happened to be the attorney general. i do not think that is a good path to go down. prof. blackman: i did some research and representative barney frank of massachusetts post and amendment in 2001. it was banning pardons before the election until after the
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inauguration. >> i appreciate that. i do not even know if that is the solution. i don't think the right path is to go down the direction that has been laid out before the committee. i appreciate that answer. let's keep this is objective as we can and recognize a significant amount of work done by the last administration for criminal justice reform. every president that -- have issued pardons that every single one of us would think are questionable. >> i am not wedded to any ideas. i will recognize another texan, sylvia garcia. rep. garcia: we have some great
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chicken in texas. i subscribe to a fried chicken blog. if the interest is fried chicken, i have a list of the best fried chicken places in texas. i want to get to ms. fredrickson. you mentioned secret pardons. is there such a thing? have secret pardons been revealed at a later time? i am intrigued by the whole notion. prof. fredrickson: i am not aware of any secret pardons being revealed after the fact. there is certainly a question, a legal great area -- gray area over whether pardons could be
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issued in secret. whether someone could be prosecuted, they have to come forward and say they have been pardoned. that is how we would have learned if a secret pardon had been issued. i would like to speak to congressman roy's point about the bipartisan potential. structural reforms such as timing issues, but also transparency issues. a pardon absolutely must be under the public eye. other things that would be important would be to structure the pardon attorney in such a way that there would be involvement that would also be transparent that has been proposed by legislation. to structure the pardon attorney
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so there would be more benevolent aspect to it. one of the rightful criticisms has been even in the pardon attorney's office, prosecutors are often very reluctant to move forward, worthwhile legitimate requests for commutation and pardon and having a more active presence of those who are seeking justice for those who has been for over incarceration or over sentencing in the criminal justice system. rep. garcia: you anticipated my line of questioning because what i was going to ask you next was about the role of the doj, one of the reports out there is that the former president just
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ignored any recommendation and pretty much closed their role and they were not involved in many of the pardons they did issue. do you think that was part of the problem with a lot of the criticism that he got? would it be a fix that we could make to make sure that it is structured so there is always a role for doj and the pardon attorney? prof. fredrickson: it is a rightful criticism. one of the aspects of president trump's pardoning was the limited role of the pardon attorney, which does serve in an advisory capacity. very deserving people who were pardoned from the credible -- criminal justice system received
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a pardon because of an intervention from a celebrity like kim kardashian. that is unfortunate. 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 that is because the pardon attorney's office may have some -- needs to be more affirmatively directed towards recognizing the injustice of our criminal justice system. rep. garcia: with eight seconds left, i will yield back. >> i was not thinking of fried
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chicken. that is just ms. fredrickson's information. >> thank you very much. i appreciate that. coming to you from the beautiful state of minnesota, where we are -0. i am warm inside. i appreciate the opportunity to take a couple of minutes and mr. johnson and mr. mcclintock really covered some of the things i wanted to ask, but i wanted to take the opportunity to offer professor blackman on the issue of legislative involvement in the presidential pardon issue. it is something i'm interested in. prof. blackman: sure. thank you so much and i
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appreciate the chance. i am hearing some interference. it is a little hard to speak. i think the role of congress here is important. i think it should occur after the fact in terms of oversight. that is something congress can investigate. what i would hesitate is to put limitations on who the president can issue a pardon to and how that pardon can be issued. a pardon issued shall be valid. when congress does not define a statute, someone else will define it.
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if congress wants to prohibit some specific act, they need to say more. it is not something that is self-evident. people argue about these things. if this body wants to put an amendment to prohibit certain actions, they should spell them out. what does it mean to be corrupt? you can be impeached for bribery. there is a difference between bribery and corruption. corruption is a catchall provision. it can speak to conduct that is perhaps unpopular but i do not think it fits the original conception. >> >> i will yield back.
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thank you, thank you, representative, and stay warm. next up, the congressman with five minutes, another freshman from up the river, representative bush. representative bush: st. louis and i thank you, chairman, for this crucial hearing. it is without question that donald trump did away -- his 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, cronies, and his white supremacist allies. the privilege afforded to the rich and powerful. meanwhile, 14,000 clemency
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applications are languishing at the department of justice. thousands of people with no connections to the upper echelons of power are left with limited recourse, caged behind bars as the devastating uncertainty of covid-19 runs rampant. the pardon power is not the problem. the problem is that it has not been used enough to correct systemic injustice. take, for example, byron miller. he was raised here in st. louis and was convicted on federal drug charges 28 years old. he is now 53, living with hypertension and asthma, in fear for his life. byron's mother is his father had 80. cancer, and his daughter was only six years old when he was sentenced. his absence is deeply felt and his family and in his community. these are the kind of people the -- our presidents are leaving
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behind, people like byron, and those who if they were sentenced today would be serving much less time if any at all. the pardon power was created as a virtually unchecked power of the presidency. this extraordinary power could be a powerful tool of freedom in the context of our punitive. the pardon power allows presidents to put humanity over greed, justice over injustice, and righteousness. our country is in the midst of a national reckoning on racial justice. for far too long, we have repressed, exploited, policed, and criminalized black and brown communities. we are in need of national healing. this moment requires transformational change, and that is the kind of change that can be done with the stroke of a pen. you talk about the use of the clemency power as a tool to
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address racial discrimination. what role can it play 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, with trump, and this has happened with other presidents, to be clear, is if they do not have someone to help them, that can be a real challenge. congress can explore legislation for an independent clemency board to review petitions and to advise the president. were the process from the doj, because there is a conflict when doj prosecutors reject the -- some of the prosecutions that they had. this could be a check and a new vehicle for this to go directly to the president. i think the president also could look to create and streamline
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the process for clemency, taking it out of the doj, and i would encourage looking at the pardon -- she was in the office of pardon attorney during the obama administration. as caroline said, they wanted to move 10,000 commutations. there were a couple of problems that she faced. one is as they opened up the string for people to get applications and focused on racial justice and excessive sentencing, they did not have the resources to have the staff because congress was blocking efforts to provide more resources, so congress can play a role here. second, she did not have access to the white house counsel, so setting up a board where you have independent people making
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recommendations, people inside and outside of the criminal justice system. i think that could be a real tool to move it for others. representative bush: a in your couple of seconds. testimony, you know that racist policies like the war on drugs have disproportionately affected communities of color and you believe that the presidential administration should have the power to remedy these injustices. why do you believe presidents have been really reluctant in this way? it is also worth noting. ms. flynn: we have deep problems in our criminal justice system that must be addressed, and clemency is only one tool for racial justice. we have to be looking at all levels. sentencing guidelines. actually, i do not think clemency should be limited to something that the president should do. it should be able to be done in courts, in federal courts, across the country so i think we , need to look at a top to bottom reform.
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representative bush: thank you. i yield my time. chair: thank you. our next congressman to be recognized that he was in the nfl so long ago he never played against tom brady. representative burgess owens. representative owens: thank you so much for that. good morning, everyone. this is truly an honor to be with you. what i'm hoping to do to bring to this committee is my lifelong passion for criminal justice reform. coming out of the judicial system and giving them a chance and when americas given that chance, a grandmother was given a life sentence. for a first offense. it took 22 years, and that was president trump, and, president obama.
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these pardons, the vast majority of pardons and commutations on trump's list were championed by criminal justice reform advocates and low-level offenses. i think it leans heavy on our forefathers, and it has a very high bar, and it comes down to them. two thirds of the house and senate, and then it goes to the states, with three quarters of the legislature. it is purposely put in place by passion of politics every four years and by reason and time. 200 years because of this reason over time. there's been over 10,000
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attempts to change or amend our constitution. it has only happened 27 times. so we, the people are the ones , who will make this happen. every four or eight years, it is done by we, the people. we can understand this process and the constitution. i can predict this amendment will not be the 28th, so i do have a couple questions. professor blackman, what other limits in the constitution can be found and placed on the part of power? prof. blackman: thank you, representative. only two. the first is that a president cannot pardon state offenses, and, second, the president cannot pardon impeachment spirit.
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representative owens: did they consider legislative involvement in the presidential pardon power? prof. blackman: yes. there were proposals of having congress involved and the congress having to approve the pardon, and those were rejected, and madison and others said the pardon power is in a single individual to assure there is speed and efficiency and justice. as we know, we have a lot of people in congress that make decisions they do not necessarily agree on. representative owens: this is something we go through every four to eight years. can you characterize president obama's pardon of chelsea manning, that was a big deal for a while? how does that compare with the majority of president's pardons? prof. blackman: the pardon of chelsea manning was quite
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controversial because wikileaks , was involved, but i think the bigger point, people on one side of the i'll have one perception, and people on the others of the aisle have a different perception. it is not a single perception. president biden will look at his people to pardon. that happens every four to eight feet years. -- every four to eight years. different people have different ideas on the pardons. chair: we only have a few minutes, for mr. naftali, so, if you could go?
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ms. jackson? representative jackson: thank you, mr. chairman, for holding this hitting -- meeting. it has been stated that the pardon power of the president is not in fact unlimited, although governed by the constitution. i have these thoughts as i present my issue and he backed off of january 6. the unforgettable attack of democracy where royalists laid siege to the u.s. capitol rating -- raising the obscenity of the confederate battle flag while seeking to disrupt the joint meeting of congress. when are a majority of votes cast by presidential electors. culminated a reign of corruption , criminal conduct, unethical behavior that has been unseen in america, and has made our country more divided.
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i say this less because -- it is important to protect and nurture the constitution. i want to acknowledge my hometown constituent, professor blackman, and, of course, the other witnesses, karen flynn, professor naftali, and the witness of professor fredrickson. let me raise this to professor naftali, as it relates to the history dealing with the importance of the clemency power , and i might add to the fact that not only are people languishing, i over the years offered legislation before we had criminal justice reform to try to would trust -- try to address the tens upon tens of hundreds of elderly
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african-american minorities incarcerated in the federal system based upon the drug siege of the 1970's and 1980's, so, professor, would you give us just a historical comment, if you would, on whether or not the president, past president, his authority would even reach the point if he had reached to attempting to give pardons to those who perpetuated criminal acts under january 6, and then, would you, as a historian, see any parallels between the post trump era and post-nixon era in which congress had reforms to rain the potential abuses, and thank you so much for your leadership. professor naftali: ms. jackson lee.
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president johnson used the pardon power to pardon jefferson davis. it was the christmas pardon of 1868. actually, it is actually very hard for me to you -- i get emotional talking about a reconstruction in the united states. because i think we, as a people, and especially people of color, but we, as a people, very heavy 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 for jefferson davis helped to create that burden, and that was a pardon by a president at the end of his term.
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i worried, i have to tell you, in january that we might see some pardons of the insurrectionists. i have spent today talking about nixon, not just because i know nixon, but we have evidence. we have a shared body of data, and all of you can -- we can actually all listen. it is there. we do not yet have, but i want us to have it, a shared body of data about the trump era. we have a lot of public information, but there is 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 do not have evidence, and i do
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not want to make the claim that he would have, but it is a question i will be asking. so, yes, presidents have had the power to pardon insurrectionists, indeed as professor blackman would certainly know. i am talking about him. the founders did talk about perhaps, at times, using the pardon to calm our political environment by issuing amnesties. one element of our history that i think really needs to be addressed is that our founders did not think of a part of the era. they did not think in terms of political parties. that is one of the reasons we have the 12th amendment, because they had to correct the electoral system. they had not imagined parties, and some of how they conceived of limits on the pardon i think
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are less powerful because they did not assume there would be the presence of a party in congress, because they did not think in those terms. that is what i am suggesting about structural reforms, because the pardon is too powerful a tool now for a president in a way that the founders i do not think anticipated because of the changes a balance of power brought about in a partisan age. one more thing i have mentioned. this is a little outside of my lane, but since you have asked a question about reforms, i believe that the issue of the pardon is not just an issue for the white house, that that power resides in the head of state and , therefore, congress does have a role in expanding knowledge of the pardon to those who could benefit from petitions. the issue is not simply that the
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petitions get read by the people in the justice department and then said to the white house through some system. it is 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's era, at the very least, kim kardashian was able to provide some of those stories to the man with the pen. but that is a very idiosyncratic way for people who 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 public's access to that executive clemency. chair: thank you, ms. jackson lee. i would like to follow up with the professor.
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in your study in the history of impeachment and our pardons, do you remember any secret pardons ever being revealed? prof. naftali: no. when that issue arose in the last week of the trump administration, i was learning something. i want to make one other thing clear. i'm worried. i'm worried about the nature of the climate of power. this is not an official concept. professor blackman, with whom i have agreed with on a number of points, but professor blackman talked about dealing with the problem of power after the fact , and i'm not sure that the history of the misuse of pardon suggests that that is enough, because part of the problem is that the president and in some ways his or her inner circle believe they can get away with it. that has an effect on our judicial and congressional system at that time.
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if people know that they will be protected, they may not be truthful with congress. they might not be truthful with the fbi or with a grand jury , because of the notion that the climate is permissive. and i think we have had that permissive climate in a number of presidencies. i have documented, and you can learn yourselves about nixon, and we are now having a debate over to the extent of the permissive climate in the trump administration, but there certainly was a permissive climate in the clinton administration on the last day of his second term. that permissive climate is a threat to our constitutional system and to the balance of power that the founders believed in, and i really encourage congress to be robust in defending its prerogative in defending the importance of checks and balances. i think the pardon power has
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gotten out of whack. chairman let me ask you this. : president obama, who issued 1700 or 1900 something pardons, he had a system set up of justice that was stringent. i think you had to serve at least 10 years of your sentence, nine years of your sentence should not have made some drug, victimless drug crime one that should not be pardoned because you had served nine and not 10 years. a system like that, to go with the criteria, done in an objective manner, where they did not know the person? prof. naftali: i really do not know the nuts and bolts history of the approach to the pardon attorney. i know that for many presidencies, ironically, a year before watergate, the white
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house was trying to create a better system for pardons. not every nixon pardon, by the way, was suspect but the , permissive climate was problematic in that it undermined our judicial and congressional system. presidents have tried to scrutinize this approach, and let's keep in mind the office of the pardon attorney, it was , i believe, created in the late 19th century, so, yes. i think the issue, mr. chairman, the issue is when presidents go outside of the system and it is how often they do that. when they say within the system, when they let the experts at doj, the civil servants, provide them with data and recommendations and the attorney general plays a role, that is one thing, but when they go outside of the system, and we have examples of presidents doing that, i would argue the evidence seems clear now -- president trump went outside of
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the system more than his predecessors but when they go , outside the system, usually, not always, but usually, it produces a controversial pardon. that was the case with president clinton, with president nixon's pardons, how do you keep the president within the system? that is really the president's prerogative, but there are ways that complicate the permissive environment. chairman: your "atlantic" article was brilliant, and one of those was the suggestion of the timing and not doing a pardon before the end of the election. did you consider a president in his first time is different from his second term? do you consider it to give notice before the election day, maybe 10 days before the election day, to make sure there is not a secret pardon, and what other reforms do you suggest?
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prof. naftali: thank you for the question. i believe in deterrence, because i think we are all imperfect. even the best of us. i think one of the great deterrence is public sanctions, and other were the public responding to what you have done. that is why a secret pardon concerns me, because they do not know about it, but that is why, one, presidents do not fear -- i want presidents to know that the public had a chance to give a verdict on their pardon, so that is why i very much like former congressman frank's idea that you set a structural sort of deadline for the pardon, and you do it before an election. so they cannot do it after the public has a chance to respond,
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and the reason you would do it in october is the public has to know about these things. if you could figure out a way to require disclosure, you could do it in late october. i think that is a good idea. the second thing is although the self pardon -- there are lots of arguments on why it should not be constitutional. i think it is the lawyers. in the nixon period, they looked at this, and they decided that, a, probably wasn't, but, b, it had to deal with the supreme court, and the supreme court sent a message. so i really believe that that sanction should be included, that you should not have self pardon. and finally, i worry about the president's ability under
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temptation, partisan temptation, to pardon those that are political associates, and i think that should be looked at hard and that prohibition should be looked at heart, as well. chairman: thank you, professor. i know you have a hard cut. i have one last question. this is to ms. fredrickson or another, but first, to ms. fredrickson. the proposals in the bill, the degree of difficulty is great. a statute is not. are there any problems you have with proposals that mr. schiff has in his bill, or anything that could pass constitutional muster with limits, such as professor naftali and others have discussed? ms. fredrickson: thank you very much, and i have enjoyed him speaking.
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i have always enjoyed that, being the daughter of a historian. it is a very important part of this conversation. i think congressman schiff's bill puts out some very important reforms, as i mentioned, which have to do with transparency and sharing that there is a broader dissemination about the process, as well as the prosecution that would be pardoned, but also, again, the clarification of the bribery statute, which, i think, it is widely held and would already apply to the president, which is to assure there is no question about that. but beyond that, i think, certainly, congress should be considering some of these reforms. they may impose greater challenges in terms of getting closer to the confines of the article 2 authority that the president has in circumscribing pardons in a way that does not constitute a prosecution for a
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criminal offense, which is already seen to be allowable, but actually telling the president when she could not pardon somebody, it is worth considering, but it may be a little more challenging in terms of the constitutional limitations. chairman: so the idea of a secret pardon and trying to prohibit them by requiring some notice and public disclosure do , you think that could be done statutorily? or is the constitution so broad that it could not be done? ms. fredrickson: it a gray area. it is worthwhile to move on the transparency issues, the transparency provisions that are included in congressman schiff's ' bill, but also to look at timing issues. it certainly sets out a very important viewpoint of congress's role in understanding the constitution, which professor blackman rightly said
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plays an important role in the interpretive process and sends a strong message, so i think there is a possible constitutional challenge i would endorse, but it is something that would occur. i think it would still merit going forward and pursuing such reforms, because i think they might certainly stimulate an administration to try to adhere to them, and if an administration did not, it would provoke its own lyrical backlash. chairman -- its own political backlash pre-chairman: thank you. and asking mr. naftali, and does anybody else request more time, or should be close this up? >> mr. chairman, another five minutes or less. just quickly, i think it was a very productive discussion today, and i appreciate that and what everyone brought to the
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discussion is important, and as we acknowledge, depending on who the president has been, but i just want to point out some things said about president trump this morning, accused of not only in one sense of going outside of the system egregious violations of the pardon power. i just want to ask the professor to put a bow on all this. i mentioned in my opening, president trump granted nearly 400 commutations of -- pardons of commutations. president trump used the power less frequently than nearly every other president since the time of the 20th century good. -- other turn of the 20th century. i want to ask you would you agree if the aspect of clemency and parted at all of this that president trump used what had done by him, at least by his subjective viewpoint, in a way to rectify unjust prosecutions? >> i think so.
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jack johnson was a very famous boxer from the early 20th century, an african-american boxster -- boxer. he was charged with violating an act, which is basically negligence law that -- state lines for immoral purposes he had a mistress who happen to be white and he was charged with basically having a relationship with a white woman. he spent some time in prison. this was almost a hundred years ago and this is a pardon that should have come sometime ago and it was one of the more commendable pardons that president trump issued. >> thank you for mentioning that and i want to point out, my son is named jack johnson. we take a lot of pride in that. jack johnson, the boxer, was convicted by an all-white jury for that crime that you said. and of course civil rights , groups and advocates.
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it took until the time of president trump to correct that historical injustice. alice johnson another ,for a drug-related offense. and the point is what i want to conclude at the end is to make the point for history, for historians, lawyers and all of us who are involved in this, that there been controversial pardons by almost every president and there been some very noble things that have done and president trump did the latter and i want to know that for the record so i know we are over time, i will go the time and i appreciate that mr. chairman. >> i want to comment. i think i had my hand up. >> sure. you are recognized. >> thank you very much mr. chairman, it's a very important hearing and i will be brief on , my comments.
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professor, thank you for giving us food for thought and a roadmap on what we are looking to assess. i gave those opening remarks as you well know, that was the height of the discussion as to whether the president would, in actuality pardon those domestic , terrorists, those insurrectionists and it was a frightening possibility. i've lived for a long time on this committee, teaming number of individuals in the system are predominantly african-american or people of color. visited some of them, had people and families petition and beg for some relief. it is a painful experience to see your neighbor incarcerated under the mandatory minimum and cannot be released or accessed. you gave an interesting point about the structure of this and the potential congress and also information and i think you -- thank you for that.
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i want to conclude my remarks and that reform is important, thank you for your historical perspective and i think we should continue to recognize that this document has lasted for a. -- period of time that pushes us to be serious about protecting it. finally, let me offer my deepest sympathy to my late congressman, my colleague from texas, congressman whyte for his tragic loss. i know that he was dedicated to the service of the nation and his constituents and the nation thank him for his dedication. thank you, and i yield back. >> thank you, and mr. johnson
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has asked for a few minutes. mr. johnson for last round of questioning. >> thank you mr. chairman. 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? trump pardoned 143 and commuted 94 sentences while obama and his eight years pardoned 212 and commuted 1715 sentences. would it be fair to say that president trump commuting sentences showed more mercy than president trump who simply let a bunch of -- [no audio]
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folks off the hook, particularly in the wee hours of the morning on the night of january 19, he issued of his 237 pardons and commutations, he commuted more than 140 people in the wee hours of the morning, just 10 hours before his term ended, including steve bannon a potential witness , it was under indictment. build the wall scheme, professor would it be fair to say that it is best for residents depend on the office of the
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pardon attorney, rather than simply dispensing pardons and commutations out of their back pockets like president trump did? >> i thank you for the question, representative. the constitution gives the president this power. the pardon attorney makes recommendations and i actually agree with fredrickson and it may make sense to have people not in the doj making recommendations because very often the doj is supporting the prosecutions. >> how many times did president trump rely upon the office of pardon attorney before making any of his 237 commutations? >> i do not know but i think it is very small. >> how many did president obama do under the office of the pardon attorney? >> i don't know the number. i'm guessing it's a bigger number. >> it was a total of 1927 with
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the pardon attorney. professor fredrickson, what is the better practice of the use of the pardon power and how can we best protect our democracy from being undermined by the illicit use of the pardon power as we saw happen under the trump administration? >> i would like to thank you for that question. it is a very important one and i would like to associate myself with the remarks of my colleague, karen hobart flynn, who talked about the needs to have a wholesale reform of our criminal justice system and its disparate impact, particularly black and brown people. the pardon power is one element of that, but it is not sufficient, clearly, the commutation. but having a system inside the justice department or a better practice as she suggested, a kind of reward that were not made up of all
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prosecutors who would be considering the real injustice that is been done and who sentences can be commuted or can be pardoned. that i think is very insufficient because there are so many people are prosecuted for low-level drug offenses who are already in prison for excessive time that we are unlikely to address all of those people through the pardon attorney processes or any kind of commutation or pardon board, but nonetheless i think it is very important to have a system to have the most significant cases to move forward and to be put forward in such a board or front of the pardon attorney for expedited process. >> thank you and thank you mr. chairman. i yield back. >> i have been told by staff
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that ms. bush might has a question? is that correct? representative bush? going once, going twice. this adjourns our hearing. i want to thank all of our witnesses for appearing today. without objection, all members will have five additional days to submit written questions or additional materials to the record. i would like to specifically ask our witnesses, if you have thoughts about legislation, either amendments to the constitution, statutory changes, suggest them into your comments to the chair because we are going to try to draft something that is feasible and passable and approving things. so if you have suggestions for amendments, that would be appreciated greatly. with that being said, i'm done and in memory of congressman wright,
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this hearing is adjourned. >> the 117 congress includes more than 160 new members including first-generation immigrants, state representatives, television reporters, former college and professional athletes. watch our conversations with new members of congress, this week at 8:00 p.m. eastern, president's day, tonight. feature freshman house democrats and senate republican members. watch interviews with new members of congress at ed :00 p.m. eastern on c-span, online at, or listen on the c-span radio app. >> after almost two full terms, harry truman returns to de


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