[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                    EXAMINING THE CONSTITUTIONAL ROLE 
                          OF THE PARDON POWER

=======================================================================

                                HEARING

                               BEFORE THE

                          SUBCOMMITTEE ON THE
                 CONSTITUTION, CIVIL RIGHTS, AND CIVIL
                               LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 27, 2019

                               __________

                           Serial No. 116-12

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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        Available http://judiciary.house.gov or www.govinfo.gov
        
        
                              __________
                              

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
41-174                       WASHINGTON : 2020                     
          
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                       COMMITTEE ON THE JUDICIARY

                   JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California              DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas              Ranking Member
STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
ERIC SWALWELL, California            MATT GAETZ, Florida
TED LIEU, California                 MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
  Vice-Chair                         KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

        Perry Apelbaum, Majority Staff Director & Chief Counsel
                Brendan Belair, Minority Staff Director
                                 ------                                

            SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, 
                          AND CIVIL LIBERTIES

                     STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana
ERIC SWALWELL, California              Ranking Member
MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota

                       James Park, Chief Counsel
              Paul Taylor, Minority Counsel deg.
                           
                           
                           C O N T E N T S

                              ----------                              

                             MARCH 27, 2019
                           OPENING STATEMENTS

                                                                   Page
The Honorable Steve Cohen, Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     4
The Honorable Jerrold Nadler, Chairman, Committee on the 
  Judiciary......................................................     6

                               WITNESSES

Caroline Fredrickson, President, American Constitution Society
    Oral Testimony...............................................    10
    Prepared Testimony...........................................    12
Justin Florence, Legal Director, Protect Democracy
    Oral Testimony...............................................    24
    Prepared Testimony...........................................    26
James Pfiffner, University Professor, Schar School of Policy and 
  Government, George Mason University
    Oral Testimony...............................................    38
    Prepared Testimony...........................................    40
Andrew Kent, Professor of Law, Fordham University School of Law
    Oral Testimony...............................................    50
    Prepared Testimony...........................................    52

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Item for the record submitted by The Honorable Sheila Jackson 
  Lee, Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties

                                APPENDIX

Item for the record submitted by The Honorable Steve Cohen, 
  Chairman, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties
Item for the record submitted by The Honorable Sheila Jackson 
  Lee, Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties

 
         EXAMINING THE CONSTITUTIONAL ROLE OF THE PARDON POWER

                              ----------                              


                       WEDNESDAY, MARCH 27, 2019

                        House of Representatives

                   Subcommittee on the Constitution, 
                   Civil Rights, and Civil Liberties

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 2:06 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Cohen 
[chairman of the subcommittee] presiding.
    Present: Representatives Cohen, Nadler, Raskin, Dean, 
Garcia, Escobar, Jackson Lee, Johnson, Jordan, Armstrong, 
Reschenthaler, and Cline.
    Staff Present: John Doty, Senior Advisor; Will Emmons, 
Professional Staff Member, Constitution, Civil Rights, and 
Civil Liberties; David Greengrass, Senior Counsel; Susan 
Jensen, Parliamentarian/Senior Counsel; Matthew Morgan, 
Counsel, Constitution, Civil Rights, and Civil Liberties; James 
Park, Chief Counsel, Constitution, Civil Rights, and Civil 
Liberties; Moh Sharma, Member Services and Outreach Advisor; 
Madeline Strasser, Chief Clerk; Paul Taylor, Minority Counsel; 
and Andrea Woodward, Minority Professional Staff Member.
    Mr. Cohen. So we are starting. Thank you, each of you, for 
coming here. The Committee on the Judiciary Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. Without objection, the chair is authorized to declare a 
recess of the subcommittee at any time.
    I welcome everyone to today's hearing on examining the 
constitutional role of the pardon power, especially the young 
students from Collegiate School.
    I will now recognize myself for an opening statement.
    The fundamental purpose of the pardon power is to ensure 
fairness and proportionality in our criminal justice system and 
to provide a check against miscarriages of justice. In essence, 
mercy and justice.
    In light of this purpose, we examine today questions about 
the potential constitutional limits of that power, particularly 
given how President Donald Trump has used or has implicitly 
suggested that he may use this power.
    Article II, section 2 of the Constitution outlines the 
powers and responsibilities of the executive branch and 
provides among other things, the President, quote, ``shall have 
the power to grant reprieves and pardons for offenses against 
the United States except in cases of impeachment,'' unquote.
    The Constitution only places two textual constraints on the 
pardon power, limiting its reach to Federal offenses only, and 
barring its use in the case of impeachment. Nonetheless, the 
exercise of the pardon power under certain circumstances raises 
a number of unanswered constitutional legal questions, ergo 
this hearing.
    Chief among these questions are, one, whether the President 
may pardon him or herself; two, whether other provisions of the 
Constitution, while not an explicit restraint on the pardon 
power, nonetheless place boundaries on its exercise; and, 
three, whether issuing a pardon or offering to issue a pardon 
can implicate criminal statutes prohibiting obstruction of 
justice or bribery.
    The discussion of these questions, which during normal 
times may have been mostly on an only academic level, has taken 
on greater importance during this Trump Presidency. For 
example, President Trump, in the midst of the now-concluded 
special counsel investigation, boldly asserted in a tweet, ``I 
have the absolute right to,'' capitalize, ``PARDON myself,'' 
unquote.
    I would note that today's hearing was scheduled before 
Attorney General William Barr transmitted his letter 
characterizing the principal findings of Special Counsel Robert 
Mueller and his interpretations thereof.
    The constitutional and legal issues that this hearing will 
explore, however, may be profoundly relevant to evaluating one 
of the counsel's questions of special counsel's--one of his 
investigations. Did President Trump abuse the powers of his 
office, including the pardon power to obstruct this and related 
investigations into his conduct and the conduct of his 
associates, and might he do so in similar circumstances in the 
future?
    I am sure my friends on the other side will argue that 
Attorney General Barr's recent letter--well, I am not sure they 
will. Some of them will say it totally exonerated President 
Trump. Some of them will realize that it didn't say that. They 
will say there was no collusion, and there apparently was 
concurrence with Mr. Mueller there was no collusion.
    But I would caution my colleagues against relying solely on 
Mr. Barr's summary and to avoid making such a sweeping 
pronouncement before seeing the actual report written by 
Special Counsel Mueller. Mr. Barr only had a few hours to look 
at the report. Mr. Mueller had 22 months to prepare it and 
study it. And it was part of his work, and he said that it did 
not exonerate the President.
    The truth is that Mr. Barr's letter raised more questions 
than it answered. Mr. Barr's letter revealed Special Counsel 
Mueller pointedly noted that it did not exonerate the President 
from obstruction of justice. In fact, according to Mr. Barr, 
the special counsel's report set out, quote, ``evidence on both 
sides of the question,'' unquote, which would include evidence 
that supports the conclusion that the President obstructed 
justice.
    This is why it is imperative that Mr. Barr provide the 
special counsel's report in its entirety to Congress, along 
with any underlying evidence.
    That is pretty much what has happened in other reports of 
counsels. They have not drawn conclusions. They have left it to 
the Congress to do that. Only in this case was there a 
defensive back on the field who jumped in and intercepted the 
ball before it was passed to Congress.
    Frankly, whether or not President Trump colluded with the 
Russian Government is irrelevant to the question of whether he 
abused the powers of his office to obstruct the special 
counsel's investigation. Special Counsel Mueller had a duty to 
provide the full picture of Russian interference in the 2016 
Presidential election.
    President Trump cannot abuse the powers of his office to 
obstruct a law enforcement investigation. Yet President Trump's 
use of the pardon power over the last 2 years raises concerns 
the President may have been willing to do just that to protect 
himself and his political allies.
    Since taking office, President Trump has issued pardons to 
former Maricopa County Sheriff Joe Arpaio, former Chief of 
Staff of Vice President Cheney, Mr. Scooter Libby, and 
conservative author Dinesh D'Souza, as well as Jack Johnson. 
Was there some other celebrity? Somebody that knew a celebrity. 
She was from my district, in fact.
    President Trump's pardoning of these individuals whose 
circumstances and convictions closely track with those of his 
former associates, including Michael Cohen, Paul Manafort, 
Michael Flynn, raise the possibility the President was 
signaling his willingness to issue pardons to discourage 
cooperation with the special counsel investigation or the 
ongoing investigations in the Southern District of New York.
    In fact, this past Monday, a lawyer for former Trump 
campaign foreign policy adviser George Papadopoulos, who pled 
guilty to lying to the FBI about facts material to the special 
counsel's investigation, revealed that she had petitioned the 
White House for a pardon on behalf of her client before Special 
Counsel Mueller announced the end of his investigation.
    Pardoning Mr. Papadopoulos would not be an act of mercy, 
nor would the pardoning of Mr. Flynn necessarily or Mr. 
Manafort or Mr. Gates or the rest. Instead, it would only send 
the message the President of the United States believes it is 
acceptable to lie to Federal law enforcement officials.
    While I have concerns about many of the ways President 
Trump has used the pardon power, his exercise of the power has 
been commendable in some instances--yes, that goes back to the 
celebrity's friend and my constituent, Alice Marie Johnson--
decades of the failed war on drugs, and thousands and thousands 
of Federal prisoners like her, whose clemency petitions merit 
the President's attention as well.
    It is my hope that going forward, President Trump will use 
his power to grant more meritorious clemency petitions. The sad 
thing is, he has really only issued two that were meritorious, 
except for Jack Johnson, which was deceased. So that was done 
not to relieve somebody of a sentence, but really for President 
Trump's sense of justice from 80 years ago, or 70 years ago. It 
was done posthumously.
    But Ms. Alice Marie Johnson and a gentleman from Nashville 
were given pardons and they deserved them, I think. But there 
are thousands and thousands of other people who deserve them, 
too, and they haven't gotten them.
    And from what I understand, the President has asked for a 
list of celebrities who should be pardoned, not a list of poor 
African Americans who have been the subject of an unfair and 
unduly-oppressive-on-minorities drug war, like Ms. Johnson, who 
came to the attention of Ms. Kardashian--yes, a name I can't 
remember, Kardashian, celebrity connection.
    Anyway, I thank the witnesses for agreeing to appear today, 
and I look forward to their testimony.
    And I now recognize the ranking member of the subcommittee, 
the gentleman from Shreveport, Louisiana, Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    Thank you to the witnesses for being here.
    A little historical context. Article II, section 2, clause 
1, as you all know, of the Constitution provides that the 
President shall have power to grant reprieves and pardons for 
offenses against the United States except in cases of 
impeachment.
    There are claims of abuse of the pardon power by the 
current President, and I am sure we will hear that here today. 
But regarding the claims of abuse of the pardon power 
generally, I would like to just at the outset here discuss 
briefly how executive dispensation has been employed more 
recently, and contrast it with how the Framers understood its 
appropriate constitutional application should be.
    In 2014, President Obama used the pardon power to commute 
the sentences of more than 1,700 Federal drug offenders, 
resulting in their release from prison without an assessment of 
the individual merits of each of those cases. In the short time 
since then, at least four of those individuals we know have 
been sent back to prison for resuming their criminal 
activities.
    Further, that same year, President Obama unilaterally 
created a program, which he simply announced on television, 
that suspended immigration laws for over four million people 
who are in this country illegally, something that is not 
allowed under the immigration laws that were passed by 
Congress. As The Washington Post's own fact-checker wrote, 
President Obama was asked, quote, ``about specific actions that 
ended deportations of a subset of illegal immigrants. 
Previously the President said that was not possible, using 
evocative language that he is not a king or the emperor. 
Apparently he has changed his mind,'' unquote.
    And, indeed, a week after he announced his immigration law 
suspension program, President Obama announced, in his own 
words, quote, ``the fact that I just took an action to change 
the law,'' unquote.
    In this last example, President Obama didn't have to act in 
violation of the law or in an unconstitutional manner. He had a 
legal and constitutional tool that would have accomplished the 
same end, namely, the pardon power. Indeed, President George 
Washington and his Treasury Secretary, Alexander Hamilton, are 
good examples of how the Framers understood the pardon power 
could be used to grant reprieves from enforcement of the law.
    President Washington made clear that executive authority to 
refrain from enforcement of the law extended only to narrow, 
case-by-case determinations. For example, under his Presidency, 
there was widespread violation of the Federal whiskey tax laws, 
as there is widespread violation of the immigration laws today.
    But President Washington insisted that he had a duty to 
enforce the laws to the extent practicable, issuing a 
proclamation in which he referred to, quote, ``the particular 
duty of the executive to take care that the laws be faithfully 
executed,'' unquote.
    A delegation that President Washington sent to Pennsylvania 
to discuss noncompliance with the Federal whiskey tax with 
representatives of that State even reported that, quote, ``One 
of the conferees then inquired whether the President could not 
suspend the execution of the excise acts until the meeting of 
Congress,'' but he was interrupted by others who objected.
    In the end, with the Nation's ranks of whiskey tax avoiders 
growing larger and larger, President Washington's response was 
not to suspend the whiskey tax laws for them, but rather to 
selectively exercise his constitutional pardon power to grant 
amnesty for some past crimes, conditional on the agreement by 
the recipients of the pardon to obey the law in the future.
    Indeed, the person charged with enforcing the Federal 
whiskey tax was Secretary of the Treasury Alexander Hamilton, 
who years earlier, during the ratification debates over the 
adoption of the U.S. Constitution, wrote Federalist Paper No. 
74, that, quote, ``In seasons of insurrection or rebellion, 
there are often critical moments when a welltimed offer 
of pardon to the insurgents or rebels may restore the 
tranquility of the commonwealth,'' unquote.
    As at least one of the witnesses here today will testify, 
the power to pardon is one of the least limited powers granted 
to the President in the Constitution. The only limitations in 
the plain wording are that pardons are limited to offenses 
against the United States, that is, they cannot include pardons 
of civil or State cases, and that they can't affect an 
impeachment process, which is always available if supported by 
the popular will.
    As one of our witnesses today has written, the pardon power 
has been and will remain a powerful constitutional tool of the 
President. Its use has the potential to achieve much good for 
the polity or to increase political conflict. Only the wisdom 
of the President can ensure its appropriate use.
    With that, I look forward to hearing from all our witnesses 
here today. I thank you again. And I yield back.
    Mr. Cohen. Thank you, Mr. Johnson.
    Before I recognize the chair for his statement, I do want 
to mention that President Obama, in my opinion, didn't give 
enough pardons, or commutations, to people with drug cases. He 
investigated all those people too thoroughly. And if 4 out of 
1,700 went back to jail, that is 0.3 percent of those issued. 
That is a pretty good score, and that means 1,696 people got 
justice.
    Mr. Chairman, you are recognized.
    Chairman Nadler. I thank the gentleman. I thank the 
chairman, and I thank him for that comment.
    Today's long overdue hearing examines the constitutional 
role and the limits of the Presidential pardon power.
    Presidents are vested by the Constitution with the awesome 
power to absolve individuals of Federal crimes. This power 
should be exercised carefully and responsibly.
    Unfortunately, President Trump has ignored the hard work of 
the career professionals in the Department of Justice Office of 
the Pardon Attorney, who carefully scrutinize pardon 
applications and who make recommendations for clemency to the 
President.
    Instead, his exercise of the pardon power has created the 
perception that pardons are a political tool, a publicity stunt 
to curry favor with the public, and a favor to bestow on the 
well-connected.
    Worse, there are some who believe that President Trump may 
be signaling the promise of a pardon to those with potentially 
damaging information about him, to encourage them not to 
cooperate with investigators.
    It is helpful to review this appalling record when it comes 
to issuing pardons.
    In August 2017, he pardoned former Maricopa County, 
Arizona, Sheriff Joe Arpaio, who had been convicted of criminal 
contempt for defying a Federal court order forbidding him and 
his law enforcement officers from racially profiling Latinos.
    Sheriff Arpaio was both a political supporter of the 
President's and a hero to the President's base. But he was 
pardoned despite the fact that he systematically violated the 
constitutional rights of helpless people in defiance of a court 
order.
    The following April, President Trump pardoned Scooter 
Libby, former Vice President Dick Cheney's former chief of 
staff, who was convicted of perjury and obstruction of justice 
in relation to the FBI's probe into the leaking of covert CIA 
officer Valerie Plame's identity.
    In June of last year, he pardoned noted conservative author 
and filmmaker Dinesh D'Souza, who pled guilty to a felony 
campaign finance violation in 2014.
    These pardons raise red flags for several reasons. First, 
none of the individuals I mentioned appear to have had their 
applications recommended or even reviewed by the Department of 
Justice's Office of the Pardon Attorney.
    Since the Civil War, the Justice Department has been 
responsible for administering petitions for executive clemency 
and preparing recommendations for the White House. While the 
President is not constitutionally bound to abide by this 
process, neither President Trump nor the Department have 
adequately explained why these individuals' applications have 
not undergone the usual review.
    President Trump appears to have cut the pardon attorney out 
of his decisionmaking regarding pardons entirely. As a result, 
not only has he made questionable decisions about who he has 
chosen to pardon, there may be many worthy candidates for 
clemency who have gone ignored. And where he has granted a 
pardon to a worthy candidate, it has generally only been when a 
celebrity friend such as Kim Kardashian West or Sylvester 
Stallone has lobbied on their behalf.
    There are also serious questions about whether President 
Trump has considered or attempted to use the powers of his 
office to shield himself or his political allies from legal 
jeopardy. Most troubling, there have been media reports that 
Michael Cohen, the President's former personal attorney, may 
have been offered the promise of a pardon by lawyers 
representing President Trump in hopes of convincing him not to 
reveal damaging information about the President.
    There is also a concern the President may have signaled the 
possibility of granting pardons to certain other individuals, 
including his former national security advisor, Michael Flynn, 
and his former campaign manager, Paul Manafort, as a means of 
discouraging them from cooperating with investigators.
    Concerns have also been raised about pardoning Mr. Libby 
for the same crimes several of President Trump's associates are 
accused of committing. He may have been signaling to those 
being targeted by investigators that a pardon may be in the 
offing if they refuse to cooperate with law enforcement.
    It is these concerns that prompted my request of several 
individuals, including former White House counsel Don McGahn, 
for any documents relating to possible pardons, as part of this 
committee's investigations into potential obstruction of 
justice, public corruption, and abuses of power by President 
Trump.
    This is one reason that we must see the entire report by 
Special Counsel Robert Mueller and all of the underlying 
evidence so that this committee can make an independent 
judgment about whether the President has obstructed justice by 
abusing his pardon power to protect himself or his political 
allies.
    Contrary to what the President may believe, under any 
reasonable interpretation of the Constitution, the President 
does not have an absolute right to pardon himself or to use the 
pardon power in a corrupt manner.
    It is true that there are few textual restraints on the 
President's pardon authority, and there is little direct 
guidance from the Supreme Court on this issue, as well as on 
other issues that an exercise of the pardon power may raise.
    The President's pardon authority, however, cannot be read 
in isolation from the rest of the Constitution's text. For 
example, Article II of the Constitution also contains the Take 
Care Clause, which requires the President to, quote, ``take 
care that the laws be faithfully executed,'' unquote; and the 
mandatory Presidential oath, which requires the President to 
swear to, quote, ``faithfully execute the Office of 
President.''
    I find persuasive the argument that the Framers intended 
this language to impose upon the President a duty to abstain 
from self-interested conduct and abuses of power, or as one of 
our witnesses here today terms it, a duty of faithful 
execution. To interpret the Constitution otherwise would be to 
render any President into an elected tyrant, who could wield 
the powers of the office to serve his or her personal needs at 
the expense of the needs of the Nation.
    And let me say one other thing. There are those who argue 
that since the pardon power is granted to the President, he can 
use it completely as he sees fit and that misuse could not be 
an obstruction of justice or an abuse of power.
    If you think a moment, this cannot be right. Let's assume 
that a President pardoned someone in return for a check, 
personal check, of $50,000. I don't think anyone would think 
that because he had the unquestioned right to issue a pardon, 
that that wouldn't be a crime, that that wouldn't be an abuse 
of power, certainly, and probably an obstruction of justice.
    Given the Framers' preoccupation with preventing arbitrary 
and abusive uses of government power, it is simply illogical to 
interpret the text of the Constitution to permit such an 
expansive view of the executive power.
    I thank Chairman Cohen for holding this very important 
hearing, and I look forward to hearing the testimony of our 
witnesses here today. I yield back the balance of my time.
    Mr. Cohen. Thank you, Mr. Chairman.
    Mr. Collins, does he have a statement he wants to enter? 
No? Okay.
    With that, we want to welcome our witnesses and thank you 
for participating in today's hearing. Your written statement 
will be entered into the record in its entirety. I ask you to 
summarize your testimony to 5 minutes. And you will see the 
lights. Green is go, yellow is warning, and red is over. To 
help you stay within that limit, there are the lighting 
switches.
    Before proceeding, I remind each of you that your written 
and oral statements made to the committee within this hearing 
are subject to penalty of perjury, pursuant to 18 USC 1001, 
which could result in the imposition of a fine or imprisonment 
for up to 5 years, or both.
    Our first witness is Caroline Fredrickson. Ms. Fredrickson 
is the president of the American Constitution Society for Law 
and Policy, a national nonprofit legal organization with 
increasing influence on legal and constitutional issues. Prior 
to working at ACS, she served as director of the Washington 
legislative office of the ACLU, and as general counsel and 
legal director of NARAL Pro-Choice America.
    She had an extensive career serving in government as a 
special assistant to the President for legislative affairs 
during the Clinton administration, chief of staff to Senator 
Maria Cantwell, and as deputy chief of staff and counsel for 
Senator Daschle. Also has served as a law clerk for the 
Honorable James Oakes of the U.S. Court of Appeals for the 
Second Circuit. She received her J.D. from Columbia 
University--which I guess is in the chairman's district, maybe.
    Columbia in your district, Jerry?
    Chairman Nadler. Absolutely.
    Mr. Cohen. Where she was a Harlan Fiske Stone scholar and 
served as editor of the Columbia Law Review.
    Chairman Nadler. And he lived in my district, too.
    Mr. Cohen. We ended up getting a lot of people from 
Chairman Nadler's district, a lot of scholars.
    She received her B.A. in Russian and Eastern European 
studies summa cum laude from a place that is an adjunct of Mr. 
Nadler's district, Yale University.
    Ms. Fredrickson, you are recognized for 5 minutes.
    Mr. Johnson. Just one moment, point of parliamentary 
inquiry. Mr. Chairman, I noticed we are not going to administer 
the oral oath before their testimony. Is that right?
    Mr. Cohen. That is exactly right.
    Mr. Johnson. And the reason is because we don't want to 
include the phrase ``so help me God'' at the end?
    Mr. Cohen. No, it is because it is totally unnecessary. The 
statutes say that the witnesses are subject to perjury and a 
penalty if they lie to the committee or tell a falsehood. So 
why have them stand up and swear to something that they are 
bound to? They are also not going to commit any other crimes 
they may commit here.
    Chairman Nadler. Mr. Chairman.
    Mr. Cohen. They will be subject to it whether they swear to 
it or not.
    Chairman Nadler. Mr. Chairman.
    Mr. Cohen. Yes, sir, I yield.
    Chairman Nadler. Thank you for yielding.
    I just want to comment here that swearing in witnesses may 
be relevant when you are talking about facts: Did this happen? 
Did that happen? Did you do this? Did you hear about that? When 
the witnesses are here to give their opinions, to have them 
swear that they are about to give their opinions as they, in 
fact, believe them, always seems a little strange to me.
    Mr. Johnson. Well, with due respect to Chairman Nadler, I 
do intend to ask the witnesses about facts, and I would like to 
know that they are going to offer--I assume that they will--but 
they will offer truthful statements and understand that they 
are under the penalty of perjury if they don't. It is an 
important tradition that dates back to the founding of our 
country, and since we are talking about the history of the 
Constitution and our great traditions here, I don't think it is 
one we should abandon today.
    Chairman Nadler. Mr. Chairman.
    Mr. Cohen. Yes, Mr. Nadler.
    Chairman Nadler. I would point out that lying to Congress, 
whether under oath or not, is a crime.
    Mr. Cohen. And it is not a tradition. I was here in 2007 to 
2010, and nobody was sworn in. That is something that started 
with the Republicans, and the votes have changed, and votes 
make a difference.
    You are recognized, Ms. Fredrickson.

    STATEMENTS OF CAROLINE FREDRICKSON, PRESIDENT, AMERICAN 
CONSTITUTION SOCIETY; JUSTIN FLORENCE, LEGAL DIRECTOR, PROTECT 
 DEMOCRACY; JAMES PFIFFNER, UNIVERSITY PROFESSOR, SCHAR SCHOOL 
 OF POLICY AND GOVERNMENT, GEORGE MASON UNIVERSITY; AND ANDREW 
    KENT, PROFESSOR OF LAW, FORDHAM UNIVERSITY SCHOOL OF LAW

               STATEMENT OF CAROLINE FREDRICKSON

    Ms. Fredrickson. Thank you so much. To Mr. Cohen, Chairman 
Cohen, and Chairman Nadler, and the other members who are here, 
I am very grateful to have the opportunity to speak before you 
in these hearings on the President's pardon power. I am 
Caroline Fredrickson. I am the president of the American 
Constitution Society.
    Despite Saturday's letter from Attorney General Barr 
interpreting the Mueller report, there are still many ongoing 
investigations of the President, his family, his businesses, 
his foundation, and there is still a broad concern that there 
could be a misuse of the Presidential pardon. So it is helpful 
to review the history of the pardon power, its limitations, and 
how our Founding Fathers foresaw its possible misuse could 
threaten the country.
    The pardon power was intended to be a benevolent power. 
President George Washington, himself, issued the first pardon 
in what was decidedly an effort to use it in a benevolent 
manner. On November 2 of 1795, he worked to end our Nation's 
earliest uprising, the Whiskey Rebellion, using the power of 
the pardon to help heal the fabric of a young Nation.
    Among the characteristics of the pardon power is that it is 
limited to Federal crimes. State cases are beyond its reach, as 
are Federal civil cases. And although there are important 
limits on an unfettered prosecution after a pardon, most 
notably the Fifth Amendment's double jeopardy clause, these 
limitations are not absolute.
    For instance, the Supreme Court has repeatedly confirmed 
that the Dual Sovereignty Doctrine means that the Fifth 
Amendment's protection against double jeopardy permits 
prosecution of State offenses, even if the individual being 
prosecuted has already received a Presidential pardon, for a 
Federal offense criminalizing the same conduct.
    Similarly, double jeopardy laws don't preclude Federal 
civil lawsuits brought by private parties or the Federal 
Government.
    Third, it should be readily apparent to all that the pardon 
power cannot be used to obstruct justice. The Articles of 
Impeachment drafted by the House Judiciary Committee against 
President Nixon provide precedent for finding the issuance of 
an obstructive pardon grounds for impeachment.
    Under those articles, it was stated that Nixon intended to, 
quote, interfere with the conduct of investigations and 
endeavored to, quote, cause prospective defendants to expect 
favored treatment through the use of the pardon power.
    An obstructive pardon can also expose the President to new 
criminal liability for obstruction of justice, witness 
tampering, and possibly even bribery for which he could be 
indicted after he or she leaves office, and some, or many, 
believe even beforehand.
    Despite this history, now Attorney General Bill Barr 
theorized in his June 2018 memo that when the President 
exercises one of the quote, ``discretionary powers,'' such as 
the power of appointment, removal, or pardon, that act cannot 
be the basis for a subsequent criminal prosecution, such as for 
obstruction.
    The Barr memo is puzzling for a number of reasons, but for 
present purposes what is most striking is how utterly devoid of 
legal support Mr. Barr's conclusions are.
    Lastly, it is important to note that a self-pardon is also 
constitutionally suspect. Past Presidents, most notably 
President Nixon, have asked if they could use the pardon power 
to save themselves, only to be told by counsel that, no man--no 
one may be a judge in his own case. And there is every reason 
to think that that opinion was and remains correct.
    The pardon power is an awesome power. When used as 
intended, it is a powerful tool for justice. However, it can 
also be a tool of greed, oppression, and perversion if used 
inappropriately. In fact, in 1788, at the Virginia ratifying 
convention, George Mason said that the President, quote, 
``ought not to have the power of pardoning, because he may 
frequently pardon crimes which were advised by himself. If he 
has the power of granting pardons before indictment or 
conviction, may he not stop inquiry and prevent detection?''
    James Madison, immediately understanding Mason's concerns, 
replied that he, too, recognized that there was a danger to 
giving the President the pardon power. But if the pardon power 
were to be used improperly and to fall into unscrupulous hands, 
he said, the Constitution had a remedy--impeachment.
    Thank you.
    [The statement of Ms. Fredrickson follows:]
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    Mr. Cohen. Thank you, Ms. Fredrickson.
    Our next witness is Mr. Justin Florence, and he is legal 
director of Protect Democracy and a lecturer at Harvard Law 
School. Previously served as special assistant and assistant 
counsel to the President during the Obama administration, 
senior counsel in the Senate Judiciary Committee to Senator 
Sheldon Whitehouse. He was law clerk for the Honorable Diana 
Gribbons Motz of the U.S. Court of Appeals of the Fourth 
Circuit. J.D. from Yale.
    Do you all know each other?
    Ms. Fredrickson. Yes.
    Mr. Cohen. Boola boola. Where he served as executive editor 
of the Yale Law Journal. He received an M.A. in history from 
Harvard and a B.A. in history from Yale.
    Mr. Florence, you are recognized for 5 minutes.

                  STATEMENT OF JUSTIN FLORENCE

    Mr. Florence. Mr. Chairman, members of the committee, thank 
you for calling this important hearing and for inviting me to 
testify.
    My organization, Protect Democracy, is a nonpartisan, 
nonprofit organization with the mission of preventing the 
United States from declining into a more authoritarian form of 
government.
    I appreciate the opportunity to testify today on the role 
of the pardon power in our constitutional system and some 
limits that the Constitution places on that power. This 
committee's oversight can ensure that this power is used to 
provide mercy and justice, as the Framers intended, and is not 
abused for corrupt or unlawful means.
    Limits on the pardon power begin with the clause's text, 
which excludes pardons in cases of impeachment and does not 
extend to pardons of State or civil offenses. In addition, the 
pardon power cannot be used in ways that violate other parts of 
the Constitution.
    As an example, it is well accepted that the pardon power 
does not extend to future crimes, for under our Constitution, a 
President can't license law-breaking ahead of time.
    Or consider another scenario. It would violate the Equal 
Protection Clause and the First Amendment for a President to 
pardon all people of a certain religion of a particular 
offense, but nobody else.
    In my testimony today, I will focus on three specific 
constraints on this power.
    First, because in our country nobody is above the law, both 
self-pardons and similar self-protective pardons are 
unconstitutional.
    Second, the President can't issue or dangle pardons in ways 
that violate generally applicable criminal laws, such as those 
prohibiting bribery and obstruction of justice.
    And third, the President may not issue a pardon that 
prevents courts from enforcing people's constitutional rights.
    Let me begin with the prohibition on self and self-
protective pardons, which comes from the Constitution's 
requirement that the President faithfully execute the duties of 
his office and faithfully enforce the laws passed by Congress.
    The Founders believed this constitutional command was so 
important that they included it in the Constitution twice, in 
the Take Care Clause and again in the Oath of Office. These 
faithful execution clauses bar the President from betraying the 
public good to serve his own interests. That means he can't 
pardon himself, or pardon somebody else to protect himself, 
rather than act to protect the American people's interest in 
the faithful execution of the laws.
    The Office of Legal Counsel in the Justice Department 
traditionally interprets executive powers quite broadly, but 
even OLC says that self-pardons go too far. In an opinion 
written days before President Nixon resigned, OLC opined that 
allowing the President to pardon himself would violate the 
fundamental rule that no one may be a judge in his own case.
    A self-pardon would reflect the sort of power wielded by a 
king, not an American President. And the same is true for a 
similarly functioning self-protective pardon.
    Turning to a second limit, the pardon power can't be used 
in a way that, on its own, violates our criminal laws. Consider 
a situation in which a Justice Department official takes a 
bribe in order to place a name on a list of proposed pardons.
    As then Senator Sessions said in the context of President 
Clinton's pardon of Marc Rich, based on the law of bribery, if 
a person takes a thing of value for himself or for another 
person that influences their decision in a matter of their 
official capacity, that could be a criminal offense.
    And the same goes for obstruction of justice. If a Federal 
official, including the President, issues or even offers a 
pardon to impede an investigation for a corrupt or wrongful 
purpose, that could run afoul of the law.
    Finally, I would like to highlight a third limit on the 
pardon power. The President may not use a pardon to prevent 
Federal courts from protecting people's constitutional rights.
    An essential component of the court's power to protect the 
Constitution is the contempt power, the ability to punish those 
who violate court orders. The Supreme Court has held that the 
court's role in our constitutional system hinges on their 
ability to prosecute contempt, without relying on the executive 
branch.
    If the President could use the pardon power to block courts 
from protecting constitutional rights, we would no longer be a 
Nation of laws but, instead, subject to the whims of one man.
    Mr. Chairman, thank you again for holding this important 
hearing. The pardon power is a noble provision of the 
Constitution, but like any power, it can be abused. And so I 
would urge the committee to continue conducting oversight in 
this area.
    I look forward to the committee's questions.
    [The statement of Mr. Florence follows:]
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    Mr. Cohen. Thank you, sir.
    Mr. James Pfiffner, university professor at the Schar 
School of Policy and Government at George Mason University, 
previously named and mentioned in the testimony of Mr. 
Florence, George Mason. His major areas of expertise are the 
U.S. Presidency, American national government, the national 
security policymaking process, and public management.
    He previously served as special assistant in the Director's 
office at the Office of Personnel Management and has taught at 
California State University, Fullerton, and University of 
California, Riverside. He has three degrees, a B.A., an M.A., 
and a Ph.D. in political science, from the University of 
Wisconsin in Madison.
    You are recognized for 5 minutes, sir.

                  STATEMENT OF JAMES PFIFFNER

    Mr. Pfiffner. Chairman Cohen, Ranking Member Johnson, 
distinguished members of the committee, thank you very much for 
inviting me here to talk about the President's constitutional 
power to pardon.
    The text of the Constitution is pretty straightforward. 
Unlike most other powers of the President, it is unchecked, 
there is no check, virtually no check from the other branches 
of government.
    The original purposes of the pardon power were two. First, 
to benefit an individual as an act of mercy, maybe justice 
erred, there was a problem, and also to temper justice by 
mercy.
    But the second, and probably more important role, is that 
of the public good. And James Wilson and Alexander Hamilton 
mentioned those things, for instance, to get the testimony of 
somebody who has committed a crime, to restore tranquility 
after unrest.
    But perhaps the broadest formulation of the pardon power is 
by President Ford, when he said he granted a full, free, and 
absolute pardon onto Richard Nixon for all offenses against the 
United States which he, Richard Nixon, has committed, or may 
have committed, or taken part in during the period when he was 
President.
    In terms of the limits of the pardon power, as has been 
mentioned, first, impeachment, of course, and second, that it 
must be a Federal offense, of course, as the Supreme Court has 
heard arguments on Gamble v. The United States where the Dual 
Sovereignty Doctrine has been challenged.
    Can the pardon power be abused by the President? And my 
suggestion is, yes. And it is derived from the English history, 
medieval kings, who arbitrarily often enriched themselves or 
promised pardon in favor for military service.
    Now, George Mason, the patron saint of my university, as 
mentioned before, was against the pardon power. He was an anti-
Federalist. He thought that Presidents would abuse it, and he 
said Presidents ought not to have the power of pardoning: If he 
has the power of granting pardons before indictment or 
conviction, may he not stop inquiry and prevent detection of 
his own crimes.
    But, of course, Hamilton and Madison won that argument and 
they said, if that is a problem, impeachment is the remedy for 
any abuse of the pardon power.
    Now, over U.S. history, over 30,000 pardons have been made 
by Presidents, but most of them have gone through the Office of 
Pardon Attorney in the Department of Justice. The most 
contentious ones, a colleague, Jeffrey Crouch at American 
University, has written a book and several articles arguing 
that President George H.W. Bush, who pardoned some of the Iran-
Contra figures, President Clinton's pardons of Roger Clinton 
and fugitive Marc Rich, President George W. Bush's commutation 
of Scooter Libby's 30-month prison sentence for perjury and 
obstruction of justice were potentially abuses. But he also 
mentioned President Trump and argued that his use of the pardon 
power was potentially for political purposes.
    But whether any of these instances is an abuse of the 
pardon power I think is a matter of political judgment and not 
of law or the Constitution. The only remedies for bad 
Presidents or judgments about pardons are political and not 
constitutional.
    On the other hand, a pardon might be legally questionable 
if there is, as been mentioned, an explicit quid pro quo, a 
pardon in exchange for silence or perjury. But, of course, it 
would depend on the corrupt intent and the nexus, which is, of 
course, difficult to prove. That is why President Ford was so 
careful about insisting that there was no prior agreement with 
him and President Nixon before he pardoned him.
    Finally, just a few points about Presidential self-pardons. 
The self-pardon was never mentioned in the Constitution, 
constitutional convention, the Federalist Papers. No President 
has attempted it. No Supreme Court has opined on it. No 
President has publicly considered it except, of course, 
President Trump, has been quoted: ``I have the absolute power 
to pardon myself.''
    The arguments in favor of self-pardons are that they are 
not explicitly forbidden in the Constitution, but, of course, 
the Constitution doesn't explicitly forbid a whole lot of other 
things.
    The arguments against, as has been mentioned in Federalist 
10, James Madison said that no man should be allowed to be a 
judge in his own cause. And Chief Justice John Marshall in 
Marbury v. Madison said that one of the core principles of the 
U.S. justice system is that the government of the United States 
has been emphatically determined a government of laws and not 
of men. A self-pardon would allow the President to put himself 
above the law.
    In writing the Constitution, the Framers didn't mention a 
whole lot of other things, and it is arguable that they didn't 
even consider this as a possibility.
    And perhaps most importantly, a self-pardon would vitiate 
the provision of the Constitution that allows for prosecution 
after removal from office. If there were self-pardons, that 
part of the Constitution would be meaningless.
    Thank you.
    [The statement of Mr. Pfiffner follows:]
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    Mr. Cohen. Thank you, sir.
    And now for the testimony of Mr. Andrew Kent.
    Collegiate School students, listen well.
    Mr. Kent is a professor of law at Fordham Law School, also 
in the chairman's district, where he has taught since 2007. 
Teaches courses in con law, Federal courts, foreign relations, 
professional responsibility, and national security law. He 
served as a visiting professor at Columbia University School of 
Law.
    He was a law clerk for the Honorable Robert A. Katzmann of 
the U.S. Court of Appeals for the Second Circuit and for the 
Honorable Carol Amon of the U.S. District Court for the Eastern 
District of New York. He received his J.D. from Yale Law School 
and his A.B. in social studies magna cum laude from Harvard 
College.
    Professor Kent is also the father of at least two up-and-
coming young scholars.
    You are recognized for 5 minutes.

                    STATEMENT OF ANDREW KENT

    Mr. Kent. Chairman Cohen, Ranking Member Johnson, members 
of the committee, thank you very much for having me here today 
to talk about some difficult and somewhat novel constitutional 
questions about the use of the pardon power. My written 
testimony covers a number of topics, but I thought I would 
focus primarily on the question of whether a President could 
pardon him or herself.
    My conclusion is that, although this is a difficult 
question, I think the best answer is no, for some of the same 
reasons as my fellow panelists, but also for reasons of some 
recent scholarship that I have been working on with my two 
Fordham Law colleagues, Ethan Leib and Jed Shugerman.
    We are in the process of publishing a paper in the Harvard 
Law Review that for the first time really explores in detail 
where some extremely important language in Article II of the 
Constitution comes from, the so-called Take Care Clause, which 
binds a President to take care that the laws be faithfully 
executed, and the Presidential Oath, which must be taken before 
assuming the office, in which the President is required to 
swear or affirm that he or she will faithfully execute the 
Office of the President.
    There have been a lot of claims by courts and commentators 
over the years about what these clauses mean, but really nobody 
has figured out where they came from. And we did, and found 
that the roots of these clauses go back at least a thousand 
years in English law. Certainly by the time of Magna Carta it 
was well established that many different kinds of executive 
officers had to take oaths and sometimes were also bound by 
commands as well to faithfully execute their offices.
    We found that these clauses over time developed three 
meanings, what we call kind of the three core principles of 
faithful execution for executive office holders.
    They are, first, that the office holder must act 
diligently, honestly, carefully, in good faith, and impartially 
when they execute the law or their office.
    Second, the officer has a duty not to misuse an office's 
funds or take unauthorized profits from the office.
    And third, the command of faithful execution is a promise 
not to act ultra vires, beyond the jurisdiction or scope of 
one's office.
    And one of our interesting findings was that it was not 
only in some very powerful offices in Anglo-American history 
where these commands were imposed, offices like colonial 
governors, governors of the American States post-independence, 
senior officials under the Articles of Confederation 
government, but also there were many lowly offices that had 
these commands as well, offices like the vestryman of a church, 
a weigher of bricks, or an inspector of agricultural products. 
So it was both high and low that were commanded to faithfully 
execute their offices.
    And as we note, these commands of faithful execution and 
their meanings actually look quite a bit like what today we 
call fiduciary duties that a fiduciary has. And at the core 
here thus is a duty to act in good faith, for the public 
interest, not for reasons of self-dealing, self-protection, 
corruption, bad faith, or other personal, nonpublic reasons.
    So we think that it is most plausible to view the faithful 
execution commands and promises that bind the President as 
limits on the pardon power. And we note in the paper, I wanted 
to stress today also, that it would not be strange or unusual 
to find that our Constitution was limiting or restraining a 
potentially dangerous executive power in ways that try to shape 
it so that it acts in favor of the public interest, rather than 
private interests.
    In fact, the Framers, although they took some of the powers 
of the English monarch, very much did not want to reproduce the 
British monarchy because of so many ills and problems that 
monarchy had revealed.
    So in addition to a new requirement--the English monarch 
did not have to swear to faithfully execute the laws--in 
addition to that new requirement, the Constitution also does a 
number of other things to prevent corruption and self-dealing 
that were experienced with monarchs but that we very much did 
not want to have here.
    So, for example, the President is barred from having any 
titles of nobility, to stop foreign governments from being able 
to dangle some kind of promise or title or lands that might 
influence the President. The President is barred from taking 
emoluments of office besides those that are allowed by law. The 
President is given a salary, in contrast to the English king, 
who tried to monetize the monarchy. I could go on and on.
    But the core idea is that the interpretation we give to 
these commands of faithful execution is very consistent with 
many provisions of Article II of the Constitution that seek to 
restrain the President not to be someone who abuses their 
office for personal ends. And for those reasons, we think that 
a self-pardon would be utterly inconsistent with the idea of 
faithfully executing the office.
    [The statement of Mr. Kent follows:]
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    Mr. Cohen. Thank you, Professor Kent. I appreciate your 
testimony.
    We will now proceed with the 5-minute rule of questions, 
and I will begin by recognizing myself for 5 minutes.
    Firstly, I had introduced H.J. Res. 8 on the first day of 
this Congress, January 3, 2019, with several cosponsors--Mr. 
Raskin and Mr. Lieu and Ms. Jayapal from this committee--to 
change the pardon power.
    And what we proposed was that the President shall not have 
the power, he shall not have the power to pardon himself or 
herself, the President's brother, sister, brother-in-law, 
sister-in-law, spouse, parent, child, grandchild, or spouse of 
the President's grandchild, the President's aunt, uncle, 
nephew, niece, or the spouse of the President's nephew or 
niece, or the President's first or second cousin, the spouse of 
the President's first or second cousin, the President's mother-
in-law, father-in-law, son-in-law, daughter-in-law, or any 
current or former member of the administration, or anyone who 
worked on the President's Presidential campaign as a paid 
employee.
    Ms. Fredrickson, do you think the pardon power needs to be 
amended? Mr. Madison said, yes, the remedy is impeachment. But 
most pardons have been issued on the last day. Impeachment is 
kind of not a very effective prohibition.
    Ms. Fredrickson.
    Ms. Fredrickson. Well, thank you, Mr. Chairman, for your 
question. I have to say I haven't looked deeply into your 
legislation.
    I think, on balance, the pardon power has been exercised 
with restraint, perhaps too much restraint, by Presidents, as 
you mentioned about President Obama. And when it is done 
correctly and with mercy, when benevolence, as it was intended, 
it is an incredible tool for justice.
    So I think I would have to spend some time thinking more 
deeply about whether or not it should be amended. I think there 
are already some very significant limitations on its use when 
it is, as I mentioned in my testimony, used inappropriately or 
with corrupt intent.
    So I think the strength of the Constitution is that that is 
already implicit. So I would just leave it there.
    Mr. Cohen. Well, we went to a pretty good length of family 
members. And when you get to a family member, it is kind of--it 
is almost self-dealing.
    Mr. Florence, you mentioned self-protecting pardons. What 
exactly would a self-protecting pardon be?
    Mr. Florence. So a self-protective pardon is a pardon that 
has the same purpose and effect as a self-pardon in that what 
it is doing is allowing the President to place himself beyond 
the reach of the law.
    So, for example, if a President says to a witness in an 
investigation, ``Go ahead, change your story, don't answer the 
questions, don't cooperate because there is a pardon coming for 
you,'' in a way that leads the witness to do that, that 
terminates the investigation or interferes with the 
investigation, and that is an investigation that involves the 
President, himself, or the President's campaign or business 
organization or family members, that self-protective pardon 
that is dangled or issued, even though it is not to the 
President himself, it has the same purpose and the same effect 
of placing the President above the law.
    And as we have all testified, there is one kind of central 
tenet of our Constitution, which is the rule of law applies to 
everybody, that nobody is above the law, that nobody can be a 
judge in their own case. And so if the President can use that 
pardon power, to make himself a judge in his own case, to place 
himself above the law, that violates a core principle of our 
Constitution.
    Mr. Cohen. And Ms. Fredrickson said that our pardon powers 
work pretty well, and it has worked pretty well, I guess. But 
because it has doesn't mean that it will. And we never had a 
President who said, I can pardon myself. I mean, nobody ever 
thought about it. I am sure George Washington and Mr. Mason and 
Mr. Madison never thought what happened could happen in 2018.
    Now that we have seen that that is a possibility, that a 
President has such an expansive perspective of his own power 
and his potential own criminal liability, don't you think we 
ought to change the pardon power, Mr. Florence, in some ways?
    Mr. Florence. You know, I think one option would be to 
amend the Constitution to make that crystal clear, but I think 
there are other ways to prevent abuse of the pardon power, 
including a self-pardon.
    And this committee has a really important role to play in 
that. It is doing that by holding this hearing and by 
conducting oversight into Presidents who try and use the pardon 
power in that way.
    As we have all, I think, also said----
    Mr. Cohen. How would you go ahead enforcing it? Let's 
assume a President pardoned himself. You would have to have an 
Attorney General to bring the action, would you not? Who would 
have standing to go to court to question that pardon?
    Mr. Florence. You know, courts are one actor in the system 
that can decide how to enforce things, but Congress can offer 
its own remedies through oversight, through political 
accountability, through other forms of accountability. And 
prosecutors within the executive branch can decide to take 
various law-enforcement actions. And so you could ultimately 
have, either through Congress or the executive branch, this 
question teed up for a court.
    I think what we have all said here is that you have got to 
read the pardon clause alongside the rest of Article II, 
alongside the Constitution, and that there are provisions there 
now, the Take Care Clause, the oath, that prevent this type of 
self-interested abusive pardon that places somebody above the 
law. And so we shouldn't lose sight of that even if we look to 
be a little bit more clear going forward in how this works.
    Mr. Cohen. Professor Kent, do you have any thoughts on 
amending the Constitution to prevent abuses?
    Mr. Kent. Well, it is always difficult, and given the two-
thirds requirement, perhaps impossible in the present 
circumstances.
    I mean, I guess the one thing I would note is, I do think 
Congress could have some legislative power. I think there is 
some possibility of doing things without amending the 
Constitution. And I think certainly one principle would be that 
Congress could legislatively prohibit uses of the pardon power 
that are unconstitutional in themselves.
    So if those of us on the panel here today are correct, that 
a Presidential self-pardon is unconstitutional, then I don't 
think a constitutional amendment would be required for Congress 
to say so.
    Mr. Cohen. But don't you think--while I agree with you, and 
I understand your legal logic, it is not in the law, it is not 
in the Constitution. And can we pass a statute that basically 
limits what is an unrestricted power to pardon based on a legal 
theory that three brilliant professors agree on?
    Mr. Kent. Yeah, you could. And if the President tried to do 
so and he were later criminally charged, as Mr. Florence said, 
that would be a proper case that the judiciary could resolve.
    And I do agree with some of the things that have been said. 
The President's pardon power is extraordinarily broad and it is 
subject to very few limitations. I just think it is not subject 
to zero limitations. So there would, I think, be some very hard 
constitutional questions about Congress doing anything beyond 
preventing or legislating against a self-pardon.
    Once you move out beyond the President himself, you do get 
into areas where the executive branch would have some very 
strong constitutional arguments that that is improper. But 
again, also, there are other forms of checking besides 
statutory prohibitions.
    Mr. Cohen. Thank you.
    And I know I am over my time, but I am the chair.
    Mr. Pfiffner, do you have any thoughts on this?
    Mr. Pfiffner. It seems to me that Congress--it is clear 
that Congress can't limit this straightforward power of the 
President. It might be reasonable to say that there is no self-
pardons, and it might be reasonable to say the President 
shouldn't pardon his relatives and friends or so forth, but I 
don't think that that would be constitutionally enforceable.
    So I think the argument against it depends on the 
Constitution itself, not on what Congress may do. Nevertheless, 
it might be reasonable for Congress to pass a resolution saying 
that, but I don't think it would have constitutional effect.
    Mr. Cohen. Thank you, sir.
    And I now recognize the distinguished ranking member, Mr. 
Mike Johnson. So help you God.
    Mr. Johnson. Thank you, Mr. Chairman. So help me God.
    Ms. Fredrickson, 5 days ago you authored a press release 
for your organization which stated, quote, ``The question isn't 
whether members of the Trump campaign conspired with Russia to 
sway the 2016 elections. We already know they did,'' unquote.
    But just 2 days later, a summary of the report of the 
special counsel was released which contains the following quote 
from the report itself: ``The investigation did not establish 
that members of the Trump campaign conspired or coordinated 
with the Russian Government in its election interference 
activities,'' unquote.
    Since you previously wrote that we already know that 
members of the Trump campaign so conspired, what reasons do you 
have to doubt the validity of the opposite conclusion as 
reached by the special counsel with all his vast resources, 
time, and unlimited discretion?
    Ms. Fredrickson. Well, thank you for that question. I 
appreciate it.
    So I would say--funny thing was that my piece came out 2 
days before the report--but I would also say very importantly--
or not the report, but the interpretation--that as you said, as 
you quoted from Mr. Barr's letter, he said that Mr. Mueller's 
investigation did not establish conspiracy.
    However, what we don't know is what the standard of proof 
was and what the evidence was, which was clearly--there was 
some evidence. And we know that the Trump--various members of 
his campaign, his campaign manager and many others, had direct 
contacts with Russians. There were over 100 contacts between 
Russians and Trump associates. They changed the Republican 
platform on Ukraine. Paul Manafort was convicted of not 
disclosing his relationship with Russian-associated people in 
Ukraine, to lobby on their behalf.
    And so, you know, I think you can draw the conclusion 
pretty clearly that there were relationships between the 
Russians and the Trump campaign, and nothing that you have said 
makes that any less true.
    Mr. Johnson. But just to be clear for the record, you don't 
have any additional special insight into all these facts than 
Mr. Mueller does, Attorney General Barr, Deputy Attorney 
General Rosenstein. Are they incompetent in their jobs? Do they 
not know how to interpret that evidence?
    Do you have some special information about that that none 
of us--the rest of us know?
    Ms. Fredrickson. I think there is a very large amount of 
information about contacts between the Russians and The Trump 
Organization. And as I have said, I can read to you the number 
of people who have been indicted, who have pled guilty, who 
have been convicted because of relationships with the Russians.
    Mr. Johnson. We all know that. But we also know the outcome 
of the special counsel's report.
    Let me ask. You also wrote an op-ed that appeared in the 
New York Times on March 22. It was entitled, ``We Don't Need to 
Read the Mueller Report.''
    Can you please explain to us why you think we don't need to 
read the Mueller report?
    Ms. Fredrickson. First I should say, unfortunately, I 
didn't get to choose the title. However, if you actually read 
what the piece said, you will see it says clearly the report 
needs to be provided to the public and to Congress.
    However, even if this administration puts up a struggle 
over providing what Congress and the American public are 
entitled to, nonetheless, because of the variety of information 
that has come forward, and even from looking at the indictments 
and the process of prosecution that has gone forward under the 
special counsel, but also in the Southern District of New York 
and the Eastern District of New York--now we have Cy Vance in 
New York, the attorney general of New York, many others legal 
actors who are investigating this President. We have a lot of 
information that leads us, I think, to be very disappointed in 
how this President has behaved as President. The indications of 
corruption----
    Mr. Johnson. I reclaim my time. I am running out of time.
    Look, you also, October 19, 2017----
    Mr. Cohen. I will give you some more time.
    Mr. Johnson. He is the chairman. He can do whatever he 
wants.
    You signed a letter to Members of Congress that was 
entitled, quote, ``Benchmarks for Ongoing Congressional 
Investigations''--oh, for Mr. Florence. Mr. Florence, sorry, 
you did this one.
    All right. Let me grill you a little bit.
    Okay. You wrote this letter, ``Benchmarks for Ongoing 
Congressional Investigations into Russian Interference in U.S. 
Elections and Related Matters,'' okay, and in the letter you 
recommended that each committee should issue a public interim 
investigation or report or public update that includes the 
following elements: How many full-time and part-time staff are 
currently assigned to the investigation, making up how many 
full-time employee slots. The training or experience of the 
assigned staff in conducting investigations. How much money was 
spent on the investigation in total and since the last report. 
How many hearings have been held, etcetera, etcetera.
    My question is, do you think that same report entailing 
that same kind of information should be made by the special 
counsel's office?
    Mr. Florence. So I think it is important for the special 
counsel's office to provide this committee with all kinds of 
information, including how it went about conducting its 
investigation, what it learned from that investigation, what 
evidence it uncovered, what conclusions it drew from that. And 
so I think as much information as this committee wants to 
request and the special counsel can provide would be useful to 
this committee's oversight.
    Mr. Johnson. But just for the record, of course, the 
Attorney General's summary of the special counsel report 
included that--in the investigation they spent $25 million, by 
the way, but they also employed 19 lawyers, 40 FBI agents, 
2,800 subpoenas executed, 500 search warrants, 230 orders of 
communication records, 50 orders authorizing the use of pen 
registers, 13 requests to foreign governments for evidence, and 
interviewed approximately 500 witnesses.
    In your professional opinion, would you say that is 
thorough, that is a thorough investigation?
    Mr. Florence. From everything I know, the special counsel's 
investigation was thorough. And I think what is so important is 
for both this committee, for Congress as a whole, and for the 
public to learn what the special counsel found. A four-page 
summary letter can't do justice to all of that work.
    And so I appreciate that this committee has asked for those 
materials. And I think once the American public can see them, 
they can see how much work the special counsel did and what he 
truly found from doing that.
    Mr. Johnson. I appreciate it.
    I am out of time, and I am not chairman, so I can't 
elaborate further.
    Mr. Cohen. You did go 1 minute and 12 seconds over. I don't 
want you to get used to that, because we don't want you to have 
that prerogative.
    Mr. Raskin, you are recognized.
    Mr. Raskin. Thank you.
    I just want to tell my distinguished friend from Louisiana, 
if the Mueller investigation cost $25 million, I am looking at 
a headline here saying that Trump's travel to Mar-a-Lago cost 
taxpayers more than $64 million. So that is just flying and the 
Secret Service and so on.
    You know, in that interesting numerical recitation of the 
number of lawyers in the Mueller investigation, which was, of 
course, appointed by a Republican Attorney General, and Mueller 
is a Republican, and so on, the lawyers and the depositions, 
and so on, one thing we didn't get was the number of pages in 
the Mueller report. And I am wondering how many pages are in 
that. Is it like 800 pages or 200 pages? Because we have got 
the right to read that.
    But let me get back over to our distinguished witnesses 
today. You guys make me miss academia. And thank you very much 
for your thoughtful testimony, all four of you.
    First of all, just to be straight, does everybody on the 
panel agree that the President cannot sell a pardon and put it 
up on eBay and take the highest bidder? Does everybody agree 
the President cannot sell a pardon?
    Ms. Fredrickson.
    Ms. Fredrickson. Yes.
    Mr. Raskin. Mr. Florence.?
    Mr. Florence. Yes.
    Mr. Pfiffner. Not on eBay.
    Mr. Raskin. I take that to be yes.
    And, Mr. Kent.
    Mr. Kent. Yes.
    Mr. Raskin. Okay. And let's go back the other way.
    Does everybody agree the President cannot pardon himself 
because of the Madisonian principle that no man may be a judge 
in his own cause because it will impair his integrity and 
corrupt his judgment?
    Mr. Kent. And for other reasons, yes.
    Mr. Raskin. And for other reasons, yes.
    Mr. Pfiffner.
    Mr. Pfiffner. That is a compelling argument.
    Mr. Raskin. Yes.
    Mr. Florence.
    Mr. Florence. Yes, I agree.
    Mr. Raskin. Okay.
    Ms. Fredrickson. Yes.
    Mr. Raskin. Ms. Fredrickson.
    Okay. So everything is very clean.
    This is what I don't miss about academia. What do you do if 
the President does pardon himself? You all say it is 
unconstitutional and think that is the end of the matter. But 
let's say the President issues a pardon to himself.
    Now, are you just asserting at that point it is legally 
null and void, that if the President is later prosecuted that a 
court should disregard it? Or are you just saying the President 
can still be impeached and convicted for it?
    Well, what does it mean if a President does try to pardon 
himself?
    And, perhaps, Ms. Fredrickson, let me start with you.
    Ms. Fredrickson. Well, I think both of those things could 
be possible, that it is null and void and that he also can be 
prosecuted. Certainly can be impeached.
    Mr. Raskin. Okay. Did anybody else want to weigh in on 
this?
    Mr. Pfiffner. I think John Marshall said that the Supreme 
Court can say what the law is. So it seems to me that that 
constitutional decision could be decided by the Supreme Court.
    Mr. Raskin. Gotcha.
    Mr. Kent, let me ask you a question. I am fascinated by 
your research on the history of the Take Care Clause. And I 
know that you are here to talk about the pardon power. But it 
may be illuminating as to Attorney General Barr's 19-page 
single-spaced memorandum making the argument that the President 
cannot, as a matter of law, ever be subject to an obstruction 
of justice prosecution because he controls the law enforcement 
machinery.
    This is the insurgent, now unitary executive theory of 
Presidential power essentially that the President has complete 
control over the executive branch. So even if he were to 
interfere, say, corruptly or in a self-interested way to try to 
squelch an investigation or kill an investigation of a friend 
like Michael Flynn, that could not be obstruction of justice.
    How does that relate to your historical investigation about 
the meaning of the Take Care Clause?
    Mr. Kent. Well, certainly it would not be a good faith, 
public spirited execution of the office to have engaged in any 
of the acts that you describe. And so I think there is a strong 
argument that they are unconstitutional and void. But 
certainly----
    Mr. Raskin. You would say not only could it be prosecuted, 
but you are saying it itself could be interpreted as 
unconstitutional, totally outside of the Constitution?
    Mr. Kent. I do. And I also agree with the many critics of 
Attorney General Barr's fairly aggressive theory of 
Presidential nonaccountability.
    I think certainly Presidential acts can, even though they 
are within the scope of Article II powers to make, can be 
treated as bribery by a prosecutor, can be treated as 
obstruction of justice by a prosecutor.
    There is not something magic about doing something pursuant 
to an Article II power that means you are entirely immunized 
from criminal liability.
    Mr. Raskin. Okay.
    Ms. Fredrickson, let me come back to you since the door was 
opened to getting your thoughts on the current crisis this 
week.
    Let me ask you, by what right did Attorney General Barr 
decide to--by what right did he take to himself to decide the 
question of whether or not the President had obstructed 
justice? Did he have the right to do that?
    Ms. Fredrickson. I think that is the big question and the 
big concern. It seems inappropriate that he placed himself in 
the role of deciding something that Mr. Mueller left undecided 
and, more appropriately, left to this committee, to this 
subcommittee----
    Mr. Raskin. Did he decide it on the basis that he had 
spelled out in that 19-page memorandum, which is the President 
can never be guilty of obstructing justice in the executive 
branch of government because he controls the executive branch 
of government?
    Ms. Fredrickson. Well, it is certainly possible. Very 
little is spelled out. I think it is an important reason for 
Congress to hear from Mr. Barr directly, as well as from Mr. 
Mueller, who apparently was not consulted in the drafting of 
this interpretation of his report.
    So I think those are very important questions because it is 
incumbent on Congress to have an answer to whether--to what Mr. 
Mueller actually found.
    Mr. Raskin. Let me ask one final question, and, perhaps, 
Mr. Florence, you could answer this.
    For many decades now, I think the President has followed 
the formal pardon process. There is a pardon attorney in the 
Department of Justice. There is a formal process for 
petitioning it goes through. There is a recommendation and so 
on. This President, of course, with the Sylvester Stallone and 
so on has gone completely outside of that and has just written 
letters.
    Are there any formal requirements for a pardon? Or, really, 
could the President pardon somebody by a tweet and, like, watch 
something on TV, get upset about it, and say, ``I am going to 
pardon this person''?
    Mr. Florence. So I think as a formal matter a warrant has 
to issue from the White House.
    As to the process, I think that process is helpful in 
protecting against some of the violations we have talked about 
and maintaining safeguards. I don't think that process is 
constitutionally required. And so if the President wants to sit 
down and write on his pad, ``I grant a pardon,'' he is 
constitutionally permitted to follow that----
    Mr. Raskin. Well, don't fight the hypothetical. I am 
talking about a tweet here. I am not talking about a legal pad.
    Mr. Florence. I think a tweet would not have legal effect 
in executing a pardon.
    Mr. Johnson. You mean a tweet is not anticipated by the 
Constitution?
    Mr. Cohen. Thank you, Mr. Raskin.
    Mr. Raskin. I yield back. Thank you, Mr. Chairman, for your 
indulgence.
    Mr. Cohen. I now recognize the gentleman from Virginia who 
made a marvelous maiden speech in this committee, and now he 
has got high hopes for a second one.
    Mr. Cline. Thank you, Mr. Chairman.
    I want to follow up a little bit on the previous 
questioners now that the door has been opened, so to speak.
    Ms. Fredrickson, you stated that there is a lot of 
information out there about the relationships, as you put it, 
between the Trump administration and Russia.
    Are you aware of any actual evidence to support an 
allegation of collusion between the Trump administration and 
the Trump campaign and Russia?
    Ms. Fredrickson. As I mentioned, it has been well 
documented that there were over 100 contacts between Russians 
and various members of the Trump campaign, the Trump family, 
and up to the Trump administration.
    Mr. Cline. Where has it been documented?
    Ms. Fredrickson. If you have been reading the newspaper or 
watching television, it has been all over the place.
    Mr. Cline. Publicly available?
    Ms. Fredrickson. Publicly available.
    Mr. Cline. Okay. So given that the special counsel issued 
more than 2,800 subpoenas, executed nearly 500 search warrants, 
interviewed approximately 500 witnesses, issued approximately 
50 orders authorizing use of pen registers, do you believe that 
he had this information as well?
    Ms. Fredrickson. I think it is really important to read how 
it was phrased by the Attorney General, which is that it was 
not established. He didn't say there was no evidence. There is 
clearly some evidence. And I think it is important that 
Congress examine it, because even if--and one has to actually 
see the full Mueller report to understand how he evaluated the 
evidence.
    But even if there wasn't enough to show beyond a reasonable 
doubt, one assumes that is the standard that he was using, 
although perhaps not the appropriate standard for an 
indictment, one has to ask: Was there enough for Congress to 
find highly problematic relationships between the variety of 
players representing, either officially or in some private 
capacity, the Russian Government, with the Trump campaign, with 
the Trump administration?
    I think those are all very important questions for Congress 
to examine.
    Mr. Cline. So with regard to conspiracy--I am sorry--the 
issue of whether or not there was obstruction of justice, the 
question is, does the Department have the authority to 
determine whether the evidence rises to the level of a 
chargeable offense?
    Ms. Fredrickson. Well, it is very interesting, because I 
think, as Attorney General Holder has stated, in his 6 years in 
running the Justice Department he never had one of his 
prosecutors present him with a case and not come to a 
conclusion.
    I think one has to look historically at the other times 
when there has been an obstruction of justice inquiry into 
Presidential behavior, and in those particular circumstances 
that has been presented to Congress to resolve. And I think one 
can intuit that that is perhaps what Mr. Mueller was thinking 
and that, nonetheless, the Attorney General put himself in the 
place of Congress and made that decision.
    Mr. Cline. So it does not--that power does not reside with 
the Department of Justice to determine whether an offense?
    Ms. Fredrickson. I didn't say that. But traditionally it 
has been with the prosecutor who has been leading the 
investigation to recommend a decision. And in this case Mr. 
Mueller didn't, again, consistent with past obstruction of 
justice inquiries into Presidential behavior and certainly 
quite unprecedented for the Attorney General to substitute 
himself in this way.
    Mr. Cline. Unprecedented for the Attorney General to 
determine that there is not enough evidence to proceed with the 
charging of an obstruction of justice charge?
    Ms. Fredrickson. As Attorney General Holder said, he never 
experienced such a situation in his 6 years running the Justice 
Department when there was no recommendation from a prosecutor 
to conclude an investigation. And Mr. Mueller said very 
directly, and that was actually quoted by the Attorney General, 
that the President was not exonerated.
    Mr. Cline. Thank you.
    Mr. Cohen. Thank you, Mr. Cline.
    I now recognize Ms. Garcia from Texas.
    Ms. Garcia. Thank you, Mr. Chairman.
    And I wanted to start with you, Ms. Fredrickson, just to 
clear something.
    I know that the statement was made earlier about--in 
discussion of a pardon, and a reference was made to President 
Obama's orders on DACA, which was a deferred action.
    Would you find any way that any deferred action of 
deportation would be the same as a pardon?
    Yes, ma'am?
    Ms. Fredrickson. You know, it is a very novel theory, so I 
haven't really engaged with it, so I----
    Ms. Garcia. Has anybody else agreed with that 
characterization?
    Mr. Pfiffner. It seemed that President Obama used 
Presidential prosecutorial discretion as a directive to DHS to 
do that. So it doesn't sound like a pardon to me.
    Ms. Garcia. Okay. Well, thank you. I think I agree with you 
on that. And I was sort of taken aback when that comment was 
made. I just wanted to clear it up.
    But, Ms. Fredrickson, I want to go back to you. You 
mentioned earlier that the word ``did not establish'' was very, 
very critical in the discussion of the conspiracy and 
coordination. Is it also interesting that the word 
``collusion'' was not used, it was just conspiracy and 
coordination?
    Ms. Fredrickson. Well, I think it is just a reflection of 
the fact that collusion is not technically a legal term. And so 
Mr. Mueller was referring to the actual legal terms. And 
collusion is one that sort of encompasses the variety of ways 
that coordination or conspiracy can happen. It is not 
technically a legal term. So I think I wouldn't find more to it 
than that.
    Ms. Garcia. Okay. Well, thank you for that.
    Then I wanted to ask you, do you agree that the 
Constitution bars an obstruction of justice inquiry that might 
examine the President's subjective motive behind a facially 
legal exercise of a discretionary power because the burden 
would be too great on the executive branch?
    Ms. Fredrickson. No, certainly not. I think it is one of 
the elements of obstruction of justice. And if that were not--
if that could not be investigated, then the President could 
never be investigated for obstruction of justice. Can't be 
right.
    Ms. Garcia. Right. So could you just kind of tell me just a 
little bit more so the average viewer who is listening to us 
that is sort of kind of lost of how this really works. What 
does that really means?
    Ms. Fredrickson. Well, what is the intent behind the 
action? So it may be technically legal. But if it is done for 
an illegal purpose, it could still be illegal. So I think that 
is the essence of the way that inquiry look works.
    Ms. Garcia. Right. Because I find it interesting that, when 
I go back home, people just don't understand what we are really 
doing, that, frankly, they think that the President could just 
tweet, ``Sylvia Garcia is pardoned,'' and that it is done.
    So would one of you--maybe you, sir, could take an--I can't 
see your name. Is it Justin?
    Mr. Florence. Justin Florence.
    Ms. Garcia. I can't read ``Florence,'' but I can read 
``Justin,'' so forgive me for using your first name.
    But can you just kind of pretend that you are talking to, I 
don't know, a middle school in my district and you want to 
explain to them how a pardon really works, when does it start? 
Can you do it? I mean, because you have clearly said you can't 
do it for future crimes.
    We already heard reports this morning that at least one 
campaign aide, Papadopoulos, who had pled guilty on one of the 
things arising from this whole episode, his lawyer has asked 
for a pardon for him. So is this something a lawyer has to do? 
Who does it? When?
    And, again, just you now have less than a minute to explain 
to a middle school class in my district what the heck is this 
all really about.
    Mr. Florence. Sure. I will give it a stab. And I think 
these concepts are ones that everybody can understand, and so 
we shouldn't obfuscate.
    Ms. Garcia. Well, obviously, they have been litigated.
    Mr. Florence. So our criminal justice system can be harsh 
at times. And as a safety valve for that, the Constitution 
includes the pardon power that allows the President to decide, 
in some cases, that an injustice occurred or that somebody is 
entitled to mercy and a second chance in redemption. And the 
President can shorten their sentence or can say, ``I am going 
to take this crime away and take it off your record, because 
you have served your time, you are entitled to a second 
chance.''
    The President has broad authority to decide when to do that 
and when he thinks it is the right thing to do. And there are 
not a lot of procedural rules about how that happens. Different 
Presidents follow different processes. This President talked to 
Kim Kardashian. Other Presidents require sort of formal 
petitions and explanations for why this should happen and 
consult with a lot of people.
    The problem is, and what I think we are talking about 
today, is that that power can be abused in some cases. And when 
the President uses that power to undermine our system of checks 
and balances or to undermine the principle that nobody in our 
country is above the law, then that power can take our 
constitutional system and throw it out of whack. And so it is 
really important for this committee, for the Congress----
    Ms. Garcia. But, again, do you do it at the beginning of 
somebody's trial? I mean, like Papadopoulos, he didn't do it at 
the time he pled guilty. You know, the lawyers are now 
asserting that request. I mean, when can it happen?
    Mr. Florence. As a legal matter, the President can pardon 
any crime that has been committed, including before the person 
has been charged, before they have been prosecuted, before they 
have been convicted.
    What they can't do, although this isn't in the text of that 
one clause, but it is in the Constitution, they can't pardon 
future crimes that have not yet been committed. But in 
principle it is okay for a President to say, ``I know you 
haven't yet been charged, but I think mercy and justice entitle 
you to a pardon here.''
    Now, what can't happen is to do that for purposes of 
getting the President himself out of trouble and allowing the 
President to shut down an investigation. That is something that 
I don't think can happen.
    Ms. Garcia. Right.
    And you, I think, all of you seem to be in agreement that 
he can't pardon himself. But I know one question I get again in 
the district from many of my constituents is, can he pardon his 
children, especially the two that work at the White House, or 
his wife?
    Mr. Pfiffner. The President can pardon anybody except, I 
would argue, himself.
    And asking for a pardon is okay. But if you are talking to 
your middle school students, I say, but pardoning somebody in 
exchange for lying, say to a jury, that would be bribery or 
obstruction.
    Ms. Garcia. Or for money.
    Mr. Pfiffner. Pardon?
    Ms. Garcia. Right. It would be legal to do it for money.
    Mr. Pfiffner. No, it would not be legal to do it for money.
    Ms. Garcia. Correct. I said it would be illegal--we are 
saying the same thing.
    Mr. Pfiffner. Illegal. Okay.
    Ms. Garcia. We don't want to confuse the students. We are 
trying to make sure they understood.
    But, yes, to the children and, yes, he can even pardon his 
wife.
    Mr. Pfiffner. Yes.
    Ms. Garcia. Okay.
    Mr. Pfiffner. Constitutionally. It may not be right, it may 
not look good, but constitutionally I think would be hard to 
overcome that.
    Ms. Garcia. All right. Well, thank you.
    And I yield back my time, Mr. Chairman.
    Thank you.
    Mr. Cohen. Thank you.
    I now recognize a gentleman who will wrestle with you, Mr. 
Jordan.
    Mr. Jordan. Thank you, Mr. Chairman.
    Mr. Pfiffner, assuming no quid pro quo, no payment, or 
anything like that, and assuming they are not talking about 
themselves, just to be clear, does the Constitution give the 
President of the United States broad and almost absolute 
authority to pardon others for a Federal crime?
    Mr. Pfiffner. Correct.
    Mr. Jordan. Correct. It gives broad, almost kind of blanket 
authority that the President has, assuming he is not trying to 
pardon himself or anything that was just discussed with the 
previous Member of Congress.
    Okay. So the ones that he has done this year. So let's talk 
about the current President, President Trump, the pardons he 
has given. Has he done anything wrong with those particular 
pardons?
    Mr. Pfiffner. You or I or many people might think that it 
is an abuse of power, but he has the constitutional authority 
to be able to do that legally, yes.
    Mr. Jordan. Joe Arpaio was fine?
    Mr. Pfiffner. Pardon?
    Mr. Jordan. Mr. Arpaio was fine, one of the pardons, Mr. 
Arpaio?
    Mr. Pfiffner. Constitutionally and legally, yes.
    Mr. Jordan. Scooter Libby was fine?
    Mr. Pfiffner. Legally, yes.
    Mr. Jordan. Okay. Jack Johnson.
    Mr. Pfiffner. Well, that is posthumous and maybe not 
necessary, but sure.
    Mr. Jordan. No one got paid there, right? Mr. Johnson, he 
has passed away, right? So that was fine, right?
    Mr. Pfiffner. Yes.
    Mr. Jordan. How about Dinesh D'Souza? Is that okay?
    Mr. Pfiffner. Yes.
    Mr. Jordan. And I think the other one was Mr. Saucier. Is 
that right? I think there has been five. Is that correct?
    Mr. Pfiffner. Whoever, yes.
    Mr. Jordan. Whoever, yes. So that hasn't been a problem.
    And how about any sentences that were commuted? Ms. 
Johnson, Alice Johnson, I think.
    Mr. Pfiffner. Sure. Commuting sentences is part of the 
pardon power.
    Mr. Jordan. Same thing.
    So we have got this hearing and all where all this concern. 
But there has been no problem whatsoever thus far with this 
power as it is currently under the Constitution.
    We have a bill that wants to change it. But it has worked 
out all right, hasn't it?
    Mr. Pfiffner. There could be problems with it, but there is 
not a constitutional or legal prohibition on it.
    Mr. Jordan. Fine. Thank you.
    Ms. Fredrickson, let me go back to where the ranking member 
was. I want to look at what you said 5 days ago.
    You wrote a piece--where did you write the piece? Was this 
in the newspaper or was this a statement? Press release. Excuse 
me, press release.
    ``The question isn't whether members of the Trump 
campaigned conspired with Russia to sway the 2016 elections. We 
already know they did.''
    You stand by that statement?
    Ms. Fredrickson. We have much evidence, as I have answered 
several times already.
    Mr. Jordan. Let me read from the special counsel's--well, 
the letter by the Attorney General referencing the special 
counsel's report. It says this: ``The special counsel did not 
find that the Trump campaign or anyone associated with it 
conspired or coordinated with the Russian Government in these 
efforts.''
    Ms. Fredrickson. The Attorney General's letter said that 
there was not--that conspiracy was not established. Examined 
evidence, there is evidence. Does not necessarily mean that the 
special counsel decided to move forward with bringing an 
indictment.
    Mr. Jordan. I guess the question is, is Bob Mueller wrong?
    Ms. Fredrickson. We need to see what he found.
    Mr. Jordan. That wasn't my question. My question is, is Bob 
Mueller wrong?
    Ms. Fredrickson. I would have to look at the evidence, as I 
think Congress needs to, to do a thorough----
    Mr. Jordan. ``The special counsel did not find that any 
U.S. person or Trump campaign official or associate conspired 
or knowingly coordinated with [Russia]. The special counsel did 
not find that the Trump campaign or anyone associated with it 
conspired or coordinated with the Russian Government in these 
efforts''--interesting clause that follows next--``despite 
multiple offers from Russian-affiliated individuals to assist 
the Trump campaign.''
    So multiple times they dangled the fruit in front of them, 
and they chose not to take it. And yet you said, ``We already 
know they did.'' And I am trying to figure out who is right, 
you or Bob Mueller.
    Ms. Fredrickson. I think we need to see what Bob Mueller 
was examining. It looks from the Attorney General's letter that 
he--it was limited to only the hacking and leaking and the 
Russian troll effort as opposed to some of the other evidence 
that we have seen in the public eye.
    Mr. Jordan. Well, you were dogmatic. You were emphatic. You 
said, ``We already know they did.'' And 2 days later the 
special counsel, via the letter from the Attorney General of 
the United States, says, no, they didn't.
    So someone is right and someone is wrong, and I am just 
trying to figure out who it is.
    Ms. Fredrickson. I have to refer back to what I said 
earlier. There are over 100 contacts between various Russians 
and Russian-affiliated people with the Trump campaign, the 
Trump administration, the Trump family, and that is certainly 
evidence.
    If Mr. Mueller didn't find it conclusive, then I think it 
is up to Congress to examine it.
    Mr. Jordan. That is not evidence of conspiring, collusion, 
or coordination. That is not. Because he said this: ``Based on 
these activities, the special counsel brought criminal charges 
against a number of Russian military officers for conspiring to 
hack into computers in the United States for the purposes of 
influencing the election.''
    But the special counsel did not find that the Trump 
campaign or anyone associated conspired with Russians. Even 
though they were given multiple chances to do so, they chose 
not to do so. But yet you pronounced to the whole world 2 days 
before this letter, ``We know they did.''
    Mr. Raskin. Would the gentlemen yield?
    Mr. Jordan. No, I have got 8 seconds.
    All I am asking is, is Bob Mueller wrong? And you are the 
head of the Constitutional Society, so I want to know what your 
thoughts are.
    Ms. Fredrickson. As I said, there was much public evidence 
that there were contacts between many Russians, and not just 
the Russian Government, but private people who were very close 
to the Russian Government----
    Mr. Jordan. If I could, Ms. Fredrickson----
    Ms. Fredrickson [continuing]. With the Trump 
administration, the Trump campaign.
    Mr. Jordan. But that is not what you said. You said, ``The 
question isn't whether members of the Trump campaign conspired 
with Russia. We know they did.''
    So you are not talking about contacts. People can contact 
folks all the time. I bet--Mr. Cline is a freshman Member of 
Congress. I bet he has contacted foreigners, because they come 
to see him, because it is important that they talk. People from 
different embassies. That happens all the time.
    So contacts is a lot different than conspiring. You said 2 
days before this letter from the Attorney General, we know they 
conspired. And Bob Mueller said, no, they didn't, very clearly, 
very often. And he even emphatically said they were given 
multiple chances to conspire and they didn't go for it. That is 
completely opposite of what you said 2 days before. And all I 
am asking is, are you calling Bob Mueller a liar?
    Ms. Fredrickson. No, I am not. But I do think that this 
Congress needs to look and see what that evidence was and----
    Mr. Jordan. Well, that raises one last question, if I 
could, Mr. Chairman.
    Are you going to take back your statement?
    Ms. Fredrickson. Once the Mueller report comes out and the 
Congress has had a chance to examine it, I would be welcome--I 
would welcome an invitation to come back to discuss it.
    Mr. Jordan. You are going to take it back?
    Mr. Chairman, I look forward to having Ms. Fredrickson come 
back in front of this committee----
    Mr. Cohen. Thank you, Mr. Jordan. Thank you, Mr. Jordan.
    Ms. Escobar is recognized.
    Ms. Escobar. Thank you, Mr. Cohen. Thank you, Chairman.
    Thanks to everyone on the panel. I really appreciate your 
being here.
    Ms. Fredrickson, I want to allow you the opportunity to 
finish. This has been a very interesting debate so far. And I 
just want you to answer one question. I think this is important 
for the public, and I think clearly it is important for this 
committee and subcommittee.
    Why should Members of Congress want to see the Mueller 
report?
    Ms. Fredrickson. Well, thank you for that question.
    You know, as was elaborated earlier, this was quite a 
lengthy and thorough investigation and accumulated quite a lot 
of evidence. Certainly a fair amount of evidence on obstruction 
of justice to the extent that Mr. Mueller himself said that the 
President was not exonerated.
    I think that it requires Congress to examine, what were the 
questions that Mr. Mueller was answering? What was the standard 
he was applying legally? Was it the standard to issue an 
indictment or was it the standard to actually convict? Which I 
think is quite important and a difference that should be 
examined by Congress. And then how many different issues did he 
actually look into in terms of relationships with Russians?
    Ms. Escobar. Actually, I wanted to get to the different 
standards, because I think this is important for the American 
public as well to understand. What are the thresholds? What are 
the standards?
    We have not had the privilege yet, obviously, of seeing the 
report. And I appreciate the ranking member pointing out how 
many millions of dollars, how many attorneys have actually been 
utilized, the public resources put into this that require us, 
that give us an obligation to see the report.
    But what are the different standards that the American 
public should be aware of? And I will actually let you answer 
the question.
    Ms. Fredrickson. Great. Well, thank you.
    And I would first just say that I have not been a 
prosecutor, so I don't speak from that experience. But 
generally, to issue an indictment is a lower standard. The 
grand jury determines whether or not there is probable cause, 
whereas a prosecutor bringing forth a case, putting a case in 
front of a jury has to prove beyond a reasonable doubt.
    And so it is a question about whether--and which standard 
was applied here, which might have meant an indictment would 
issue if it were probable cause but not under the higher 
standard.
    We just don't know. And I would defer to my colleagues up 
here who may have more experience in criminal procedure than I 
do.
    However, I would say there is also a different standard in 
terms of Congress. And that is your constitutional role of 
oversight, to examine whether or not, even if behavior which 
didn't reach a threshold of beyond a reasonable doubt is 
nonetheless something that Congress needs to take action to 
correct.
    And that could be through many mechanisms. Certainly 
impeachment is always available to Congress under the 
Constitution. But you have the appropriations power, you have 
the power to make law, and so forth.
    So I think that is another standard that in this case is 
the most important standard for you to take to heart.
    Ms. Escobar. Thank you so much.
    And actually, Mr. Florence, I want to ask you about that 
behavior, because in your written testimony you wrote: ``The 
President can run afoul of obstruction laws by dangling or 
promising pardons to influence a witness.'' And then you later 
write: ``The factual determinations necessary to determine 
whether dangled pardons violate the criminal laws can, and 
should, be determined through law enforcement investigations or 
through congressional oversight inquiries.''
    I am curious as to your thoughts and opinions. We have seen 
the messaging that President Trump has put out through Twitter 
and through interviews in the media. What are your thoughts on 
whether the President has actually dangled pardons?
    Mr. Florence. So I want to begin by pointing out why it is 
so important for Congress to look at this. The Mueller 
investigation was into whether a foreign government interfered 
in our election. And the special counsel did not exonerate the 
President from interfering in that investigation, from 
obstructing that investigation.
    So we have a foreign government that has attacked our 
democracy. I would hope that our executive branch is fully 
united behind investigating what happened there, who was 
involved in it, and what we can do to make sure it never 
happens again. And yet we have a special counsel who, while 
being very measured, very cautious, is not able to exonerate 
the President from interfering in that investigation? That is 
scary.
    And so this Congress, this committee, needs to know was the 
President trying to block an investigation into a foreign power 
altering or interfering in our elections. This committee can do 
that in a lot of ways. It can take testimony. It can start by 
getting the full Mueller report, all of the underlying evidence 
that it found, both into what happened in our election, what 
the Russians did, and into whether, how, and why the special 
counsel had some concerns that the President may have been 
trying to block that investigation.
    And that is something that I don't think is a partisan 
issue. We should all agree that our elections should be decided 
by American voters and by our country, and that we should all 
want to make sure that no foreign power interferes, and that 
when it does we are all united to make sure that it doesn't 
happen again.
    Ms. Escobar. I agree. We should all be united. And some of 
us are trying to get to that.
    One last quick question.
    We have learned about the way--or we have discussed today 
about how the President actually circumvented what many people 
would consider a normal process for determining a pardon by at 
least getting some consultation. His consultation instead has 
been Kim Kardashian.
    Is there a way for Congress, without infringing on the 
broad constitutional power that the President has, is there a 
way for us to legislate that somehow to put some transparency 
in a process?
    Mr. Florence. I think transparency is the key word there, 
and that there are things that Congress can do with its 
legislative authority to ensure that if the President abuses 
this power or if there is some suggestion he may be abusing 
this power, that Congress can make sure that doesn't go 
unpunished and unnoticed.
    And so a bill was offered by Mr. Schiff, the Pardon Abuse 
Prevention Act, that I think this committee may wish to look 
at, to make sure when there is a pardon that may look to put 
the President above the law, that the underlying investigative 
materials can make their way to Congress so that there is 
transparency and that nobody can use this one power to put 
themselves above the law and prevent the equal application of 
the law.
    Ms. Escobar. Thank you.
    Mr. Cohen. Thank you.
    Ms. Sheila Jackson Lee, a successor to a great, great 
former impeachment member of this committee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Yes, I had the experience of being a member of this 
committee in the impeachment proceeding that occurred in the 
1990s.
    Let me thank the chairman and the ranking member. This is 
an extremely important hearing. And I thank the witnesses very 
much for their presence being here.
    I want to ask a question that would warrant just a yes or 
no. I am going to take you down memory lane, and that is to 
recall, in the fall of 2016, 17 intelligence agencies 
determined that Russia was attempting to interfere with the 
2016 election. It fell around the fall time. I know that the 
then Secretary of Homeland Security was extremely engaged in 
the process of working with other intelligence agencies to make 
sure that it was as broad a review as possible.
    Ms. Fredrickson, do you remember that determination?
    Ms. Fredrickson. Yes, I do.
    Ms. Jackson Lee. Mr. Florence, do you remember that 
determination?
    Mr. Florence. Yes.
    Ms. Jackson Lee. Mr. Pfiffner, do you remember that 
determination?
    Mr. Pfiffner. Yes, ma'am.
    Ms. Jackson Lee. And, Mr. Kent, do you remember that 
determination?
    Mr. Kent. I do.
    Ms. Jackson Lee. With that as a backdrop, I am going to 
proceed with questions.
    That establishes that any thought, any facts, any 
presentations about Russia's involvement is predicated on the 
fact that in 2016 our intelligence agencies, 17, confirmed that 
they were attempting to do so. And that was in the midst of the 
2016 Presidential election.
    In the summer of 2017, I introduced H. Res. 474. And I ask 
the chairman unanimous consent to introduce this into the 
record.
    Mr. Cohen. Without objection.
    [The information follows:]

                      ******** INSERT 2-1 ********

    Ms. Jackson Lee. This was a resolution in the midst of the 
ongoing hysteria and castigating of Director Mueller, accusing 
the special counsel's work as a witch hunt. And, frankly, 
Members of Congress were frightened.
    So the resolution expresses the disapproval of any action 
by the President to remove the special counsel investigating 
the Russian interference in the 2016 Presidential election and 
opposition to the grant of pardons to any person for offenses 
against the United States arising out of Russia's activities to 
bring about the election of President Donald J. Trump as 
President of the United States.
    A number of members joined. This was a vigorous discussion. 
And I might say, Ms. Fredrickson, it was evidence of the 
Article I body attempting to give oversight to what was 
seemingly threatening a rule of law--process of the rule of 
law.
    I will read into the record the language, the opening 
language.
    ``The strength of the American constitutional system 
designed in 1787 in Philadelphia is the national government's 
separated powers in which the legislative, executive, and 
judicial branches serve as checks and counterbalances on each 
other, and fidelity to the rule of law is the highest value and 
responsibility.''
    I am very glad to say Mr. Cohen was a cosponsor of this 
legislation.
    But, Ms. Fredrickson, would you, then--may I give you an 
opportunity to, as you were making your comments, that was it 
in your mind that the Article I body, the Congress, had not 
been heard on the Mueller report?
    Ms. Fredrickson. Absolutely. That is an essential piece.
    Ms. Jackson Lee. And offer to me what you thought we might 
do as a constitutional body even in receiving the Mueller 
report.
    By the way, do you believe that we should immediately 
receive the Mueller report and its supporting documents?
    Ms. Fredrickson. Well, I believe that you should receive it 
as soon as whatever redactions that need to be made consistent 
with the law, not overly expansive, are made. But that should 
be very prompt. And Congress is certainly entitled to.
    The Article I powers are clear. Congress has a role in 
oversight. Congress has to ensure that rule of law is upheld. 
And it is entrusted to you in the Constitution to make sure 
that the President himself is not above the law.
    So because of the breadth of this investigation, because of 
the dangers that you have enumerated that it was meant to 
address, and that, according to our intelligence agencies, are 
still ongoing threats, it is imperative that this body take up 
the report and examine it. I think we still have a lot of 
questions about what might happen in the next election. And 
there may be lessons to be learned for that purpose as well.
    Ms. Jackson Lee. Some will offer the fact that they believe 
the pardon power is unconditional. This committee has made a 
commitment to the American people to abide by the rule of law. 
And we will be looking at issues involving corruption, 
obstruction of justice, and the abuse of power.
    Mr. Florence, can there be, and what parameters would you 
suggest to be considered, if the pardon power was abused?
    Mr. Florence. I think this committee has a lot of tools at 
its disposal. The first thing that should happen is real 
oversight and investigation to find out what abuse has 
happened, to assess that, and to provide a report to the public 
so that the people can know what has been going on and make 
their own judgments.
    But the Congress has additional tools at its disposal that 
it can use in cases of abuse of power, up to and including 
censure, impeachment, and other authorities. And it is 
ultimately for the Congress to make those judgments.
    What I would offer----
    Ms. Jackson Lee. Let me just--you can abuse power with the 
use of the pardon power.
    Mr. Florence. It is a serious concern that the pardon power 
can be abused. And it is incumbent on Congress to prevent that 
abuse.
    One of the things that we have seen is that it is fairly 
rare, although not unprecedented, for pardon questions to get 
in front of the courts. There are various reasons for that. And 
one consequence of that is that it is so important for this 
body as a coequal branch of government to make sure that abuse 
doesn't happen.
    Ms. Jackson Lee. Well, would you be kind enough to offer 
just an example--we won't hold you to it--that might be an 
abuse of the pardon power?
    Mr. Florence. So I will take your invitation and offer two.
    One is the President's pardon of Sheriff Arpaio. So Sheriff 
Arpaio was sued by private people for violating their 
constitutional rights. The court said he violated their rights, 
you got to stop doing that. It entered an injunction to tell 
him to stop doing that. He violated that court order again and 
again. And the court used its concept authority to say: You 
have got to follow my order. You have got to stop violating 
constitutional rights.
    President Trump then issued a pardon to pardon Sheriff 
Arpaio of contempt and to take away the court's ability to 
enforce its orders for the reasons I have laid out in my 
testimony and that are in briefing in that case. That violates 
our system of separation of powers and the core constitutional 
command that, when people's rights are violated, they can go to 
courts and courts can provide a remedy and protect the 
Constitution.
    So that is one. If I have time, I will----
    Mr. Cohen. You can answer, finish up, and then we will move 
on.
    Mr. Florence. So I think there has been a lot of reporting 
about potential dangled or discussed pardons where people 
around the President, his lawyers, have been talking with 
subjects of investigations about maybe there will be a pardon 
for you. This is just news reporting. I don't know all of the 
facts of this.
    But if, in fact, the President and his people are offering 
or dangling pardons to influence witness testimony in order to 
interfere with an investigation, that would be an abuse of the 
power.
    We don't know all the facts there, and that is why it is so 
important to have real investigation and oversight and get to 
the bottom of what happened, some of which is alluded to in the 
short summary of the Mueller report and all of the findings and 
conclusions and evidence that the special counsel had on 
obstruction.
    Ms. Jackson Lee. Mr. Chairman, I thank you for allowing 
that time extended. And I just want to say this evidences, 
although I was not able to pose questions to all the witnesses, 
it evidences the importance of this hearing.
    Thank you so very much. I yield back.
    Mr. Cohen. Thank you. And Ms. Barbara Jordan would be proud 
of you.
    Ms. Dean, you are recognized.
    Ms. Dean. Thank you, Mr. Chairman. I appreciate the chance 
to be here.
    And thank you to all the witnesses.
    Thank you Mr. Chairman for having this hearing.
    Over the course of the last 2 years, I found myself 
thinking I am looking in a mirror upside down. So many things 
seem upended. So many things seem out of place. So many of our 
institutions or the use of our institutions seem just out of 
kilter. And much of this before I came to Congress and was 
sworn in January the 3rd.
    And I want to ask about pardon power and, like my 
colleagues and like all of you, talk about the importance of 
full transparency of the Mueller report, because if we don't 
have full transparency of the Mueller report and then pardons 
flow from the activities of that, even more troubling and more 
hidden and obscure will the truth be from the American public.
    Professor Kent, I wanted to give you an opportunity to--and 
I apologize. I was in another hearing. So if this is 
repetitive, I am sorry, Mr. Chairman.
    I wanted to give you a chance to comment on the 
constitutional authority to pardon. And I saw your outline of 
the four kind of fundamental questions that you asked.
    Could you tell me some of your concerns with this President 
and his already use of the pardon power and what you worry 
about as possible use of the pardon power moving forward?
    Mr. Kent. Yes. Thank you, Congresswoman.
    You know, certainly one thing that I and I think a lot of 
other people worry about would be a self-pardon. We have talked 
about that at length and reasons why it seems that we all agree 
that that would be unconstitutional.
    You know, I think also extremely troubling are what Mr. 
Florence and others have referred to, the news reports--and, 
again, we don't know all the facts--but the reports that people 
who seem to be intermediaries of the President have been 
interacting with lawyers for people who may have damaging 
testimony about the President to raise the possibility of 
pardons.
    And again, we certainly would want to gather all of the 
facts before making any kind of conclusions about it. But I, in 
addition to thinking that the Congress has oversight power to 
look into this, I mean, those clearly could be Federal crimes. 
Those could be crimes of obstruction of justice or related 
crimes. And I think we should all hope that we live in a 
country where the Justice Department would be independent 
enough to be looking into that as well.
    Ms. Dean. Okay. Thank you.
    And, Ms. Fredrickson, one of the more troubling aspects I 
found with Attorney General Barr's scant summary--and it was by 
no means encompassing, we didn't even see a single full 
sentence from the Mueller report, which I found troubling--the 
Attorney General came to a legal conclusion regarding 
obstruction of justice. It was 48 hours after the report was 
delivered. And yet unable to deliver the report to us, he was 
able to get through it in that 48 hours and made the legal 
conclusion that there was no obstruction of justice by this 
President. That I found particularly troubling.
    The Attorney General argued there that the President cannot 
commit obstruction of justice--this was in his 19-page memo 
that he wrote before he earned the position of Attorney 
General--that he cannot commit obstruction of justice when 
using his own constitutional authority. I found that reasoning 
to be flawed.
    Could you expand on this notion of constitutional powers 
that cannot lead to obstruction of justice and explain where 
the Attorney General's reasoning is either right or falls short 
when it relates to pardon power?
    Ms. Fredrickson. Thank you for that question.
    So the issue is, as Professor Kent had discussed earlier, 
the unitary executive theory, which posits that the President 
has absolute control over the entire executive branch, and that 
is in all decisions, hiring and firing, and so forth, and that 
by exercising his discretionary powers, he can actually not 
commit obstruction of justice.
    It is a very, very questionable fringe theory. And 
Professor Kent in his, I think, upcoming Harvard Law Review 
article with a couple of other esteemed scholars goes to 
examine the history of the pardon power and discusses at length 
the unitary executive theory.
    But it is, as I said, a fringe theory that arrogates 
complete power to the President that I think certainly, if you 
consider why there was a founding of the United States of 
America after a rebellion against an absolute monarch, it is 
clear that even if you believe in the originalist understanding 
of the Constitution, you would particularly then assume that 
the President could not be above the law.
    But I think maybe I should turn it over to Professor Kent 
who has delved so deeply into the history that he might offer 
you more.
    Ms. Dean. Thank you.
    Mr. Kent, did you want to add to that?
    Mr. Kent. I agree that the very, I would call it extreme 
view of Presidential unaccountability that was offered by Mr. 
Barr while he was still a private citizen has very little basis 
in our constitutional history and tradition.
    You know, the President has many powers that are in Article 
II, and the idea that just simply because you can point to some 
part of Article II and say, ``I am exercising that power,'' 
that immunizes Presidential action from accountability by the 
law, it is illogical and just contrary to so much Supreme Court 
precedent and so many generally accepted legal understandings, 
I am not quite sure what more to say about it. It is incorrect.
    Ms. Dean. I appreciate that. And I appreciate the chance to 
remind the American public of our history and where the pardon 
power came from, that it was to be exercised as a benevolent 
power, not a power to get cronies off for doing some criminal 
acts.
    Mr. Cohen. Thank you, Ms. Dean.
    Mr. Raskin. Will the gentlelady yield?
    Ms. Dean. Yes.
    Mr. Raskin. Could I----
    Mr. Cohen. Go ahead.
    Mr. Raskin. I promise it will be brief, a concluding 
question along this point.
    Mr. Cohen. Go ahead.
    Mr. Raskin. I just want to know, certainly when we all read 
Attorney General Barr's--or then lawyer Barr's memorandum 
asserting that the President could not obstruct justice within 
the meaning of the law, that this was an extreme and eccentric 
kind of view, could somebody characterize whether it has gained 
traction in the scholarly literature or in the law generally? 
Is it still a real minority view, or is he speaking for a lot 
of people now?
    I yield back to you, Mr. Chair.
    Mr. Florence. I would be happy to offer an observation 
here.
    Even before that memo came out, when others in the 
President's circle had floated this theory, my organization, 
Protect Democracy, organized a letter from dozens of 
constitutional law scholars, I believe Professor Kent and his 
coauthors among them, explaining why this theory has no basis 
in the Constitution.
    What I think is important for this committee to do is to 
make sure that this stays a fringe position and doesn't somehow 
make its way into the law. Since Watergate, it has been clear 
that the President can't abuse his powers to place himself 
above the law. This President I think is trying to do that in a 
number of ways, and it is really critical for this body to make 
sure that that doesn't happen, and, frankly, for all of the 
people who you represent, to make sure that we stay a Nation of 
laws and not a Nation where we have a king who can do what he 
wishes subject to no law.
    Mr. Cohen. Thank you.
    Let me ask you all to refresh my recollection or to give me 
some information. I believe that we have only had one other 
special counsel, and that was Mr. Danforth in Waco, under the 
regulations. And we had two independent counsels, Mr. Jaworski, 
he was a successor to another independent counsel, and Mr. 
Starr.
    Did any of those three individuals give opinions of 
violations of the law in their reports? Or did they make the 
reports, submit them to Congress, and let Congress make 
decisions?
    Mr. Florence.
    Mr. Florence. They made sure that those reports could get 
to Congress. And one thing that we have done to make sure that 
that is publicly known is to unearth the Jaworski road map that 
the grand jury provided to this committee in the context of 
that investigation because it is so important for Congress, as 
a coequal branch, to uphold our Constitution and ensure 
accountability here.
    Mr. Cohen. And same thing for Kenneth Starr. He didn't 
recommend this is a violation, that is a violation, I would 
indict, or I wouldn't indict. He just gave the report to 
Congress, did he not?
    So this is really strange. This is the first time in maybe 
the history of the country in a special counsel or independent 
counsel that the Attorney General has jumped in the breach and 
given his opinion of what the report said. It has never 
happened.
    Okay, let me ask you this. Is it possible there was a 
counterintelligence portion to the Mueller investigation and 
that wasn't--wouldn't have been part of conspiracy but 
something in there about counterintelligence that might have 
shown that the President was compromised by his holdings of 
properties in foreign countries or his desire to have a 
property in a foreign country or loans that were made to him or 
moneys that were laundered through a bank to him, and that 
possibly those compromised him and we could have a President 
that the report could show is under the influence or could be 
under the influence of the Russians, and yet it still wouldn't 
amount to a conspiracy? Is that not possible?
    Ms. Fredrickson, would that be something you think might be 
in, could be in the Mueller report?
    Ms. Fredrickson. Well, it might be. Obviously, I haven't 
seen the Mueller report, and there may be parts of it that 
involve national intelligence that I would never see since my 
top secret clearance has expired.
    But certainly an important question, and, again, a reason 
why Congress needs to get that report, because you can 
certainly examine all of that.
    Mr. Cohen. And is it possible that there is something in 
there that might amount to a coverup of knowledge of what the 
Russians were doing which would not amount to a conspiracy? 
Like if the Trump children or one of the children knew that the 
Trump campaign was--what the Russians were doing, but didn't 
say, ``We are going to do this for it,'' there is no quid pro 
quo, but they knew about it, and maybe they even discussed, 
``Well, we would sure like to have sanctions lifted at some 
time,'' that wouldn't be a conspiracy, would it?
    How far would they have to go to make that a conspiracy? 
And maybe they wouldn't want it to be known if it was less than 
a conspiracy but maybe a coverup of some information?
    Ms. Fredrickson. I really don't--I can't comment on what 
might be in the national intelligence portion of the Mueller 
memo. But, again, I can only say that that is why it is so 
vital that this body examine that information. There certainly 
are many aspects of--certainly much that we have seen reported 
about relationships that have to do with financial holdings, 
with property, with the Trump Tower in Moscow, with a variety 
of other issues that may not have been part of a conspiracy, 
may not have been the government necessarily, but may be a 
reason why there could have been a coverup.
    But, again, I can't really speculate, but I think it is 
important for you--because many people are thinking of those--
asking those questions of themselves that for them to be 
definitely answered, it comes to Congress to do that.
    Mr. Cohen. You made a point in your opening statement to 
say that the Barr 19-page memo was devoid of legal support, 
right? But if it had a lot of political support, wouldn't that 
trump the legal support?
    Ms. Fredrickson. Right. Well, I think Professor Kent, he 
used the word extreme. I used the word in my oral testimony or 
just now of fringe. But I think you can find a few people who 
will endorse it.
    But it certainly--it is a very interesting contrast between 
some of the things that Mr. Barr said in his testimony before 
the Senate Judiciary Committee to what he said in the memo when 
he was a private citizen auditioning for a different kind of a 
job with the President. So certainly it has some political 
force behind it.
    Mr. Cohen. Coming back to pardons, to close this hearing 
out, there was a governor of Tennessee--I don't know if any of 
you all heard of him--Leonard Ray Blanton. Anybody heard of 
Leonard Ray Blanton? Former Member of the House, Governor of 
Tennessee from 1974, when he was elected leaving Congress after 
8 years, and served from 1975 to 1979.
    Leonard Ray Blanton, at the last minute right before he was 
leaving office, the FBI found out he was going an issue a lot 
of pardons to a lot of people for money.
    So the lieutenant governor of the State, John Wilder, the 
speaker of the State, Ned McWherter, jumped into action with 
the winner of the 1978 election, now United States Senator 
Lamar Alexander, and swore him into office about 48 hours or 24 
hours, right at the last minute, early, so that Governor 
Blanton couldn't issue those pardons, and he didn't. And Senate 
Alexander became--then Mr. Alexander became Governor Alexander.
    But by issuing pardons at the last minute, but for somebody 
having knowledge of it and stepping into the breach, there is 
no remedy. Impeachment is not a remedy.
    So I find Mr. Mason's perspective better than Mr. 
Madison's, because Mr. Madison was wrong to say impeachment is 
the answer. Impeachment is tough, and impeachment can't do 
anything for somebody who issues pardons at the last minute. I 
just remember the Clinton administration. Almost all the 
pardons were at the last minute.
    As I have said, I urged President Obama for 3 or 4 years to 
be issuing commutations. And I had confirmation from people who 
were in the office, his attorneys in the office who worked on 
that, that they had gone so slow and the process was terribly 
slow, and they didn't get offices geared up, and they lost 
people, they lost--their pardon attorney, I think quit. And I 
forget the lady's name that worked over there in the White 
House Counsel's Office.
    But if he issued 1,700 commutations, I, again, say that was 
about 7,000 too few. And it was 0.3, not 3 percent, but 0.3 
percent that Mr. Johnson said had violated some portion of the 
law, 4 people out of 1,700. Obama did pretty good in his 
thorough examination. He didn't do good enough for the rest of 
them.
    I think we need to amend the pardon power. I recommended it 
back in 1977 when I was a constitutional convention of 
Tennessee vice president, an E vice president of the 
constitutional convention. And we had the pardon power before 
us, because I knew what Ray Blanton was doing and it had come 
up, and recommended that we change the pardon power and give 
it, say, if four of five of our Supreme Court justices looked 
at it and didn't think it was the interest of justice, it 
wouldn't go into effect.
    Now, the justices didn't want to touch it, it didn't get 
anywhere. But it was a way to put some kind of a limit on the 
Governor's pardon power by having the court look at it.
    Here we proposed limiting it to certain close folk. But 
there should be something. And I hope you all would give it a 
little thought and submit to me, if you would, any thoughts you 
have on how we should amend the pardon power or recommend it. 
Not easy.
    But there are certain things we can work together on the 
Republican side. We had a hearing on the Emergency Powers Acts, 
and we have a lot of agreement there on a possible statute. And 
the Republicans are just as much concerned about an 
overreaching executive if it is, you know, maybe a different 
party, but, in general, their philosophy is that. And so we 
might find some common ground. I hope you would help us with 
that. You know, I am concerned what could happen with these 
pardons.
    I think somebody said that these acts of obstruction of 
justice were in clear public view. That is what maybe Mueller 
said, they were all in public view, which would have been the 
Comey thing. But it wasn't all in public view, because the 
dinner wasn't in public view when he had the one-on-one dinner 
and asked him to lay off of Mr. Flynn. We don't know what else 
was not in public view. It was in public view, I guess, when he 
told Lester Holt: I did it because of the Russia thing.
    But this President is a President who thinks he can get 
away with shooting somebody on 5th Avenue. If he thinks he can 
get away with shooting somebody on 5th Avenue, he is not going 
to have a problem in public view going: I did this because of 
the Russia thing. He also doesn't think about the ramifications 
of his actions, because he has not real good on the second and 
third steps. Not real good on that.
    So I think the pardon power is something we need to look 
at. I think it can be abused. I think it will be abused.
    And I am so happy that Ms. Johnson got out of jail, my 
constituent, and the gentleman in Nashville got out. But there 
are thousands and thousands of people who Kim Kardashian has 
not taken to her heart and that Sylvester Stallone hasn't read 
about, people who may not be dandies, who deserve commutations, 
and the idea that we give them on celebrity.
    And he has asked for a list of people who are celebrities, 
not asked for people who have been unjustly convicted or served 
too long. He hasn't even through about that. He is just looking 
for celebrities.
    Mr. Cohen. So it is a problem.
    Mr. Raskin, you want to follow up with something? Professor 
Raskin.
    Mr. Raskin. Mr. Chairman, I want to thank you for calling 
this hearing. I want to thank everybody for their flexibility 
and suppleness in dealing with the questions today. Obviously, 
we are in the middle of an ongoing constitutional emergency 
here, and we appreciate all of the support and the insight of 
the people in academia.
    Thank you, Mr. Chairman. I yield back to you.
    Mr. Cohen. Thank you.
    And that will conclude our hearing. And I have to find the 
last things I need to say. That conclude, we appreciate that, 
we have done that, we have done that, we have done that.
    This concludes today's hearing. I want to thank all of our 
witnesses for appearing today, even if they weren't under oral 
God's witnessed oath.
    Without objection, all members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    With that, excellent hearing, thank you for your 
participation, excellent children in attendance. We are 
adjourned.
    [Whereupon, at 4:08 p.m., the subcommittee was adjourned.]
      

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