    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                      CONSTITUTIONAL MEANS TO PREVENT ABUSE
                                  OF THE CLEMENCY POWER

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

                                    HEARING

                                   BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
                            RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           TUESDAY, FEBRUARY 9, 2021

                                   __________

                                Serial No. 117-1

                                   __________

             Printed for the use of the Committee on the Judiciary

     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    45-378                     WASHINGTON : 2021

    -----------------------------------------------------------------------------------

                          COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREG STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

                    PERRY APELBAUM, Majority Staff Director
                  CHRISTOPHER HIXON, Minority Staff Director
                                     ------

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                              AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
                    DEBORAH ROSS, North Carolina, Vice-Chair

    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana, Ranking
    HENRY C.``HANK'' JOHNSON, Jr.,           Member
        Georgia                          TOM McCLINTOCK, California
    SYLVIA R. GARCIA, Texas              CHIP ROY, Texas
    CORI BUSH, Missouri                  MICHELLE FISCHBACH, Minnesota
    SHEILA JACKSON LEE, Texas            BURGESS OWENS, Utah

                           JAMES PARK, Chief Counsel

                                C O N T E N T S

                                  ----------

                                February 9, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve Cohen, a Member of Congress from the State of
      Tennessee, Chair of the Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties....................................     2
    The Honorable Mike Johnson, a Member of Congress from the State
      of Louisiana, Ranking Member of the Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     5

                                   WITNESSES

    Caroline Fredrickson, Distinguished Visitor from Practice,
      Georgetown University Law Center
      Oral Testimony.................................................    17
      Prepared Testimony.............................................    20
    Karen Hobert Flynn, President, Common Cause
      Oral Testimony.................................................    32
      Prepared Testimony.............................................    34
    Josh Blackman, Professor of Law, South Texas College of Law
      Houston
      Oral Testimony.................................................    47
      Prepared Testimony.............................................    49
    Timothy Naftali, Clinical Associate Professor of Public Service,
      New York University
      Oral Testimony.................................................    52
      Prepared Testimony.............................................    54

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Statement by the Honorable Jerrold Nadler, a Member of Congress
      from the State of New York, Chair of the Committee on the
      Judiciary, submitted by the Honorable Steve Cohen, a Member of
      Congress from the State of Tennessee, Chair of the Subcommittee
      on the Constitution, Civil Rights, and Civil Liberties for the
      record.........................................................     8

                                    APPENDIX

    Statement by the Honorable Sheila Jackson Lee, a Member of the
      Subcommittee on Constitution, Civil Rights, and Civil Liberties
      from the State of Texas for the record.........................    90

          CONSTITUTIONAL MEANS TO PREVENT ABUSE OF THE CLEMENCY POWER

                                  ----------

                           Tuesday, February 9, 2021

                         U.S. 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 9:12 a.m. via
    Webex, Hon. Steve Cohen [chair of the subcommittee] presiding.
        Present: Representatives Cohen, Ross, Johnson of Georgia,
    Garcia, Bush, Jackson Lee, Johnson of Louisiana, Jordan,
    McClintock, Roy, Fischbach, and Owens.
        Staff Present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Madeline Strasser, Chief Clerk; Moh Sharma,
    Member Services and Outreach Advisor; Jordan Dashow,
    Professional Staff Member; John Williams, Parliamentarian;
    James Park, Chief Counsel, Constitution, Civil Rights, and
    Civil Liberties; Will Emmons, Professional Staff Member,
    Constitution, Civil Rights, and Civil Liberties; Matt Morgan,
    Counsel, Constitution, Civil Rights, and Civil Liberties; Katy
    Rother, Minority Deputy General Counsel and Parliamentarian;
    Caroline Nabity, Minority Counsel; James Lesinski, Minority
    Counsel; Sarah Trentman, Minority Senior Professional Staff
    Member; and Kiley Bidelman, Minority Clerk.
        Mr. Cohen. 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 this Subcommittee at any time.
        Before we go into our committee, I would like to express
    the chair, and I am sure all of the Members of the Committee
    and the Congress' sadness at the passing of Representative
    Wright. He served for a short period of time, but he was a
    gentleman, and we will miss him, and we mourn his loss. And I
    would like for us to have a moment of silence in his honor.
    Without objection.
        Thank you. Thank you.
        At this point, Mr. Johnson, if you would like to lead us in
    prayer regarding the passing of our colleague, you would be
    recognized.
        Mr. Johnson of Louisiana. Thank you for that, Mr. Chair.
    Very much appreciated.
        Our colleague, Chip Roy, who has joined us this morning,
    was on an interview this morning and knew Representative Wright
    as well as any others, and said so well, he was a good man, a
    good family man, and truly dedicated public servant to his
    constituents and to the country. So, thank you for that. I will
    lead us in prayer. Thank you.
        I will just pray, Heavenly Father, thank you for this day,
    for the work that you have put before us, and for all our
    colleagues. We are reminded this morning of the preciousness of
    life and how fleeting it is.
        I pray that Representative Wright's example would be one
    that shines for all of us. He was truly committed to you and to
    his family and to his country and to all those he served. So,
    let that be a shining example for us. Let us be reminded to
    value one another and that life is short, and we make the most
    of it.
        So, we pray for the Wright family, all those involved, his
    constituents, everyone affected, all of our colleagues as well,
    and that you bless and continue to bless him and them and the
    work of our hands.
        All this I pray in Jesus' name. Amen.
        Thank you, Mr. Chair. Yield back.
        Mr. Cohen. Okay. Well done. Thank you.
        Now, we will go back to the Committee and welcome everyone
    to today's hearing on ``Constitutional Means to Prevent Abuse
    of the Clemency Power.''
        Before we begin, I would like to remind Members, new and
    returning, that we have established an email address and
    distribution list dedicated to circulating exhibits, motions,
    and other written materials that Members might want to offer as
    part of our hearing today.
        If you would like to submit materials, please send them to
    judiciary docs--that is judiciarydocs@mail.house.gov, and we
    will distribute them to Members and staff as quickly as
    possible.
        I will now recognize myself for an opening statement.
        I am pleased to convene the first hearing of the
    Subcommittee on the Constitution, Civil Rights, and Civil
    Liberties for the 117th Congress. I look forward to once again
    working with the gentleman from Louisiana, Ranking Member Mike
    Johnson, and other Members of our Subcommittee on the many
    challenging and pressing issues that will be addressing us in
    the months and years to come.
        While we will no doubt have sharp disagreements from time
    to time, it is my hope that we will always be able to disagree
    in the guardrails of mutual respect as colleagues. Each of us
    was sent here to represent our constituents faithfully and to
    the best of our abilities.
        We begin this Congress by picking up on a topic that we
    devoted two hearings to in the previous Congress, which is the
    proper scope and use of the President's constitutional power to
    grant clemency.
        The clemency power is outlined in article II, section 2 of
    the Constitution, and is rightly broad. The clemency power's
    purpose is to Act as a safety valve for our criminal justice
    system, to correct system injustices, and to ensure that mercy
    tempers excessively harsh punishments.
        There are few things that are more fiercely urgent than the
    need to grant clemency to the thousands who suffer from the
    burdens of excessive and unjust imprisonment or the collateral
    consequences stemming from their criminal convictions. Perhaps
    not coincidentally, these burdens are disproportionately borne
    by people of color.
        I have long been concerned with the stinginess with which
    modern Presidents have granted clemency, beginning in the 1980s
    with the so-called war on drugs, which really goes back to the
    1970s. Between 2013 and 2014, I wrote four letters to then
    President Obama and then Attorney General Holder urging the
    President and the Attorney General to become more involved, to
    grant more clemency petitions, and I authored two opinion
    pieces on the subject calling for more clemency grants.
        In fact, I had written the President early in his second
    term and told him I had three C's I wanted him to work on:
    Cuba, cannabis, and commutations. It was alliterative, it may
    be somewhat effective, but he was a little shy on clemency.
        I also wrote to President Trump to commend him for
    commuting the sentence of Alice Marie Johnson and to encourage
    him to do more than his predecessor, who did issue a great
    number of clemencies, probably the most of anybody in recent
    time, but far from the amount of people that deserved them. I
    asked him if he would do more in granting clemency to many
    cases like that of Ms.
    Johnson.
        It is my hope that President Biden will be a leading
    example of how clemency power could be more effectively used,
    especially among those who may be more deserving but whose
    pleas have not been heard.
        The Subcommittee will commit itself to pushing for more
    expansive use of the clemency power, an effort that I hope will
    be bipartisan, because we are talking about freedom, and we
    know both caucuses appreciate freedom.
        When considering what is the proper scope and use of the
    clemency power, however, there is another matter to consider,
    which is whether there are or should be limits on the power
    when a President grants clemency for self-serving or corrupt
    purposes, rather than as an Act of mercy. Presidents of both
    parties have issued controversial pardons that raise these
    kinds of questions, which is why they have been longstanding
    interests of this subcommittee. Such pardons are often not in
    keeping with the purpose of the clemency power.
        In 2019, the Subcommittee considered the question of
    whether a President could issue a self-pardon, and the
    consensus among all the witnesses at that hearing, including
    the one requested by the minority, was that, on balance, the
    Constitution likely would prohibit self-pardons. Indeed, during
    the Nixon Administration, the Department of Justice's Office of
    Legal Counsel concluded self-pardons would be unconstitutional
    because of the basic principle that no one should be a judge of
    his or her own case.
        Questions about the proper scope of the clemency power took
    on greater urgency during the recent Presidency. No President
    is permitted to abuse the power of his office to obstruct a law
    enforcement investigation, yet the manner in which President
    Trump used the clemency power throughout his Presidency raised
    the concern that he may have been willing to do just that to
    protect himself and his political allies.
        For example, during the investigation of the special
    counsel, Robert Mueller, into possible Russian interference in
    the 2016 Presidential election, President Trump on multiple
    occasions dangled the possibility of pardons for witnesses who
    refused to cooperate--specifically, Paul Manafort, his former
    campaign chair, Michael Flynn, his National Security Advisor,
    Roger Stone, his senior campaign adviser.
        Ultimately, he would pardon all three of these individuals
    after their convictions for various criminal offenses stemming
    from the Mueller investigation during his final weeks in
    office.
        In addition, to matters related to the Mueller
    investigation, President Trump used the clemency power in other
    potentially self-serving ways as most of those who received
    clemency had some kind of special access or other political or
    personal connection to him. That seemed to be the thread rather
    than the crime and the sentence.
        This included clemency for four former Republican Members
    of Congress, one of whom I was personally close to.
    Nevertheless, they had been convicted of various criminal
    offenses, ranging from bribery and insider trading to misuse of
    campaign donations.
        Charles Kushner, his son-in-law's father, and his former
    chief political strategist, Steve Bannon, who was awaiting
    trial on fraud charges relating to a scheme to fund a wall on
    the U.S.-Mexican border, were also pardoned.
        President Trump also reportedly discussed pardoning himself
    and his children during his final days in office. We presume he
    didn't do that, but we don't know that for a fact, because
    there is such a thing as a secret pardon, which is something we
    should address today.
        In light of the foregoing, I introduced H.J. Res. 4, a
    proposed constitutional amendment that would expressly prohibit
    Presidents from granting clemency to themselves, prohibit
    clemency grants to certain classes of people, like the
    President's family Members to the third degree, Administration
    officials, paid campaign staff, or any person or entity who
    committed an offense directed by the President. It also has a
    catchall provision making any pardon invalid which was issued
    for a corrupt purpose. I had introduced similar resolutions in
    the previous two Congresses.
        While this proposed amendment precludes clemency for
    certain potential recipients, I would also like to talk about
    ways to improve the clemency process, transparency, and the
    timing of pardons and commutations.
        Specifically, I would like to hear the witnesses' views
    about requiring public notice of pardons, to get around the
    issue of a possible secret pardon, or commutations that might
    be issued before election day. I think Mr. Naftali had
    suggested some type of prohibition before election day, or
    after the election, but it would have to have some time period
    and the requirement of notice. There it was a secret pardon, it
    wouldn't be known. That would have to be addressed.
        The public notice of pardons or commutations, maybe a time
    before election day so that voters have notice, that only,
    obviously, in a Presidential election year and probably only in
    the first term; requiring more transparency to avoid secret
    pardons; and revising the system by which clemency decisions
    are made, including removing or curtailing or otherwise
    amending the role of the Department of Justice with respect to
    the clemency process.
        This will not be our last look at the clemency power in
    this Congress as the Subcommittee will continue to engage on
    this issue, including from a criminal justice reform
    perspective.
        I thank our witnesses for being here, and I look forward to
    a lively discussion.
        Now, I would like to recognize the gentleman from
    Louisiana, our Ranking Member, Mr. Johnson, for his opening
    statement.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair. I
    appreciate that very much.
        Article II, section 2 of the Constitution includes very
    clear language, and of course it says, in relevant part, quote,
    ``The President shall have the power to grant reprieves and
    pardons for offenses against the United States except in cases
    of impeachment,'' unquote.
        Some Presidents, of course, have used this power more than
    others. They do this based upon their own conceptualization of
    justice, their own respective judgments, and most of the
    country has always respected that.
        For instance, President Trump issued 237 total pardons and
    commutations during his term of office in 4 years--237. By
    comparison, President Obama issued 1,927 pardons and
    commutations, President Bush issued 200, and President Clinton
    issued 457. So, the numbers vary.
        President Obama issued pardons or commutations, many of
    which were very controversial. He, for example, included
    Chelsea Manning, who endangered national security by leaking
    classified information; Oscar Rivera Lopez, a top FALN leader
    and terrorist; and his Joint Chiefs of Staff Vice Chair, James
    Cartwright, who lied to Federal investigators.
        President Bush commuted the sentence of Lewis ``Scooter''
    Libby, which was controversial in some circles.
        President Clinton issued pardons or commutations to his own
    brother for drug-related offenses, to fugitive political donor
    Marc Rich, to his CIA Director, his Housing Secretary, and
    several individuals who were convicted for their actions during
    the scandals of his own Administration.
        Most recently, President Trump pardoned Roger Stone and
    Michael Flynn.
        All these Presidents exercised their judgment and issued
    pardons that were controversial with the opposing party and
    with many segments of the public. But despite the broad use of
    the pardon power that has varied from President to President
    throughout our entire history, the majority introduced the
    Abuse of Power Prevention Act last Congress.
        Republicans explained that the bill was unconstitutional at
    a Committee markup last July. Nevertheless, the Committee
    favorably reported the bill on a party-line vote.
        Additionally, Chair recently introduced the proposed
    constitutional amendment that he just mentioned to narrow the
    pardon power.
        I have several significant concerns with this proposed
    amendment. Many of us do. Among other issues, it vaguely
    declares that, quote, ``Pardons issued for a corrupt purpose
    shall be invalid.'' The problem there is that it is pretty
    vague and overbroad language. There is not any framework or
    workable standard to determine what exactly amounts to a
    corrupt purpose.
        I am sure that the majority would argue that certain
    pardons issued by President Trump were issued for a corrupt
    purpose, while most Republicans would argue they served the
    interests of justice by ending politically motivated
    prosecutions.
        This very issue of partisan passions affecting the judgment
    of Congress is precisely why the Founders structured the Pardon
    Clause exactly as they did. Alexander Hamilton argued against
    legislative involvement in the pardon power, because he said,
    quote, ``When the offense has proceeded from causes which had
    inflamed the resentments of the major party, they may often be
    found obstinate and inexorable, when policy demanded a conduct
    of forbearance and clemency,'' unquote.
        James Madison similarly argued that legislative involvement
    in the pardon power would be improper because, quote,
    ``Numerous bodies actuated more or less by passion and might,
    in the moment of vengeance, forget humanity,'' unquote.
        Similarly, a narrower pardon power was proposed during the
    Constitutional Convention for precisely the same reasons that
    the majority advances today. For good reason, that proposal was
    soundly defeated.
        The pardon power is best vested in the President, as it was
    designed in the Constitution, for a President to exercise as
    they see fit based upon their personal judgment and notion of
    justice.
        I thank our witnesses for appearing before the Subcommittee
    this morning. I look forward to your testimony, and I hope we
    can have a productive conversation.
        Mr. Chair, with that, I yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        Unanimous consent is requested for submission of the full
    Committee Chair Mr. Nadler's opening statement for the record,
    and I would ask for unanimous consent for that. Without
    objection, his statement will be entered into the record.
        [The information follows:]

                            MR. COHEN FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. The Ranking Member, Mr. Jordan, is present, and,
    if he chooses to make a statement, he is recognized at this
    point.
        Mr. Jordan. Mr. Chair, I am fine. Thank you.
        Mr. Cohen. All right, Mr. Jordan. Thank you, and welcome.
        Now we will go to witness introductions. We welcome our
    witnesses and thank them for participating in today's hearing.
    I will now introduce each witness and after that introduction
    will recognize the witnesses for his or her oral testimony.
        Please note that your written statement will be entered
    into the record in its entirety. Accordingly, I ask you
    summarize your testimony in 5 minutes. In the absence of the
    proverbial timing lights, the green, the yellow, and the red, I
    will note orally when 5 minutes have elapsed and bang my gavel,
    otherwise known as a Louisville Slugger miniature bat.
        There will also be a timer on your screen, so please be
    mindful.
        Before proceeding with testimony, I would like to remind
    all of our witnesses that you have a legal obligation to
    provide truthful testimony and answers to the subcommittee. Any
    false statement you may make today may subject you to
    prosecution under section 1001 of title 18 of the United States
    Code.
        Our first witness is Caroline Fredrickson. Ms. Fredrickson
    is a distinguished visitor from practice at Georgetown
    University Law Center and a senior fellow with the Brennan
    Center for Justice at New York University School of Law. She
    teaches courses on the legislative process, constitutional law,
    and democracy.
        She was previously the President of the American
    Constitution Society for Law and Policy. She has also had an
    extensive career serving the government as special assistant to
    the President for legislative affairs during the Clinton
    Administration, as chief of staff to Senator Maria Cantwell,
    and as deputy chief of staff and counsel for Senator Tom
    Daschle. She also served as a law clerk for the Honorable James
    L. Oakes of the U.S. Court of Appeals for the Second Circuit.
        Ms. Fredrickson received her J.D. from Columbia University
    School of Law, where she was a Harlan Fiske Stone scholar and
    served as editor of the Columbia Law Review. She received her
    B.A. summa cum laude from Yale University.
        Ms. Fredrickson, you are now recognized for 5 minutes.

                   STATEMENT OF CAROLINE FREDRICKSON

        Ms. Fredrickson. Thank you so much, Mr. Chair. I am really
    pleased to have the opportunity to appear before you today on
    this important topic.
        As has been said, the pardon power gives the President the
    power to address injustices and show mercy. However, the
    breadth of this power has made it susceptible to misuse.
        Just before leaving office in 1992, President George H.W.
    Bush pardoned former Secretary of Defense Caspar Weinberger and
    five others convicted in the Iran-Contra scandal.
        And President Bill Clinton's pardon to Marc Rich, a
    fugitive felon who had been indicted for fraud and tax evasion
    and was the ex-husband of a major donor to both the Clinton
    Foundation and Hillary Clinton's Senate campaign, was rightly
    criticized.
        Former President Trump has gone even further in granting
    questionable pardons. On his final day, Trump pardoned 74
    people and commuted the sentences of 70 others, including
    Salomon Melgen, who was convicted of defrauding Medicare to the
    tune of $75 million.
        The pardon power was intended to be a benevolent power, but
    there are several well-recognized limits on its exercise. It
    only extends to Federal crimes, it may not be used to obstruct
    justice, and a self-pardon is constitutionally suspect.
        Congress could of course reform the pardon power by
    constitutional amendment. As Chair's proposal would do, it
    would limit the President's pardon power to grant such a pardon
    to himself, his family, his Administration officials or
    campaign advisers, and would prevent pardons for conduct
    undertaken for a direct and significant personal benefit of the
    President, his family, officials, or for crimes committed in
    cooperation with the President.
        The Chair rightly states that the power often operates like
    a get-out-of-jail-free card more than as a grant of mercy to
    those who have been clear victims of injustice.
        Congress could also reform the pardon power by creating
    statutory limits. There is a bill introduced by Representative
    Adam Schiff which would propose two important reforms. In cases
    of covered offenses, his bill would require that DOJ and the
    President provide congressional committees with materials
    relating to the prosecution as well as the pardon, and it would
    strengthen the bribery statute by clarifying its application to
    the President and Vice President that it is an official Act to
    grant a pardon or commutation and that such a grant is a thing
    of value.
        Thus, the amendment would ensure that--or the bill would
    ensure that any offer of a pardon or a pardon itself would be a
    criminal Act if part of a corrupt exchange, and it would also
    declare Presidential self-pardons invalid.
        There is strong reason to believe this legislation would
    withstand constitutional challenges. It is widely accepted that
    Congress may impose criminal penalties on a Presidential pardon
    intended to bribe a recipient. Since the legislation does not
    attempt to circumscribe the actual grant of a pardon, it does
    not tread near the President's article II powers.
        DOJ has issued two opinions that are consistent with this
    understanding. In October 1995, there was an opinion that
    stated the ``application of the bribery statute raises no
    separation of powers question, let alone a serious one.''
        According to OLC, the Constitution confers no power in the
    President to receive bribes as it specifically forbids any
    increase in the President's compensation for his service while
    he is in office, which is what a bribe would function to do,
    and because the Constitution expressly authorizes Congress to
    impeach the President for bribery.
        With respect to a President's pardon of him or herself, as
    is well-known, in 1974 there was another OLC opinion that
    stated that such a pardon is illegitimate.
        There is another bill meriting consideration, authored by
    Representative Krishnamoorthi, which would require the
    President to publish the issue date, recipient, and full text
    of each pardon or reprieve granted. Even if not limiting to
    whom or for what reason a pardon could be granted, such
    legislation would bring public attention to ill-considered
    grants.
        Another area where Congress can help police the pardon
    power is its oversight function. After President Clinton
    pardoned Marc Rich, Congress engaged in a thorough and
    bipartisan investigation. Although no criminal charges were
    issued, Congress did uncover some highly questionable behavior,
    including efforts by President Clinton's half-brother and
    brother-in-law to lobby for pardons in exchange for pay.
        As has been noted, the President's power is an awesome
    power, a power for good. It is often used, however--or it is
    not often enough used for good, and it is sometimes used in a
    way that is abusive, and Congress is right to take up the task
    of restoring the pardon to its status as a benevolent power.
        Thank you.
        [The statement of Ms. Fredrickson follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Ms. Fredrickson. You have obviously
    been here before, because you know how to do 5 minutes on the
    nose.
        Our next witness is Karen Hobert Flynn. Ms. Hobert Flynn is
    the President of Common Cause, a position she has held since
    2016. Common Cause is a nonpartisan grassroots organization
    dedicated to upholding the core values of American democracy,
    working to create open, honest, and accountable government and
    promote equal rights and opportunity for all and empower
    people's voices in the political process.
        Ms. Hobert Flynn has been with Common Cause for the last 28
    years in various capacities. In that time, she has worked to
    expand Common Cause's efforts with respect to election
    Administration reform, curbing the outsized influence of big
    money in politics, and ethics and accountability reforms.
        She has written and spoken frequently on democracy issues,
    including about influence of money in politics, voting rights
    and ethics, and conflict of interest reform for elected
    officials.
        Ms. Hobert Flynn, you are recognized for 5 minutes.

                    STATEMENT OF KAREN HOBERT FLYNN

        Ms. Hobert Flynn. Thank you, Chair Cohen, for inviting me
    to testify at this important hearing.
        Mr. Chair, Ranking Member Johnson, and Members of the
    subcommittee, I am pleased to be here as President of Common
    Cause, a national, nonpartisan organization with more than 1.5
    million supporters working for an open and accountable
    democracy.
        The pardon power is a potent tool to advance justice.
    Unfortunately, it can also be misused to obstruct justice. This
    warrants congressional action, and I hope my testimony today
    will help you with your task.
        First, I must say that no discussion about executive
    clemency is complete without first acknowledging the broader
    problems of our criminal justice system. Systems of mass
    incarceration continue to ravage communities, often violently
    wrenching Black and Brown people out of their homes and dumping
    them in steel cages at alarming rates. Racist public policies
    continue to have disparate, inequitable impacts on Black and
    Brown people and communities.
        Until Congress passes sweeping criminal justice reform that
    roots out racism, classism, and xenophobic policies and
    practices in all levels of the justice system, we must
    encourage the President to use clemency as a tool to chip away
    at injustice, as President Obama did during his term and I
    discuss further in my written testimony.
        Elections have consequences, including those who are
    seeking clemency. Many of President Trump's pardons rewarded
    his White, wealthy friends, including war criminals, former
    aides, corrupt insiders, and others who obstructed justice by
    lying to Congress and law enforcement. This is a challenge we
    have seen with some other Presidents.
        More importantly, we believe that President Trump abused
    the pardon power to send a message that he and his associates
    viewed themselves as above the law. In his words and deeds,
    President Trump signaled his intent to reward obstruction and
    subvert accountability to further his own political power.
        His efforts were open and notorious. Special Counsel
    Mueller detailed this in his report, noting that, quote, ``Many
    of the President's acts directed at witnesses, including
    discouragement of cooperation with the government and
    suggestions of possible future pardons, took place in public
    view,'' end quote.
        Among those pardoned, Michael Flynn, who twice pleaded
    guilty to lying to the FBI; his former campaign Chair, Paul
    Manafort, who encouraged witnesses to lie on his behalf; Roger
    Stone, convicted of obstructing Congress' investigation into
    foreign election interference, lying under oath, and witness
    tampering.
        There are also very serious questions about how the pardon
    power could be used for illegal bribery or pardon schemes, as
    public reporting late last year indicated the Department of
    Justice was investigating.
        There are steps Congress must explore to rein in the abuse
    of the pardon power. First, some reforms would require a
    constitutional amendment. H.J. Resolution 4 by Chair Cohen puts
    forward a number of strong proposals to curb self-dealing and
    evasion of accountability, including invalidating pardons
    issued for corrupt purposes.
        Even without a constitutional amendment, Congress has the
    power to otherwise check the abuse of the pardon. The Abuse of
    the Pardon Power Prevention Act in the 116th Congress, which
    was included in the Protecting Our Democracy Act, provides
    important oversight, transparency, and antibribery and self-
    dealing protections. We urge its reintroduction and passage
    this Congress.
        In the meantime, Congress should also investigate whether
    President Trump's pardons to his associates and others were
    otherwise corruptly granted and share what it learns with the
    American people.
        Congress should also explore the idea of independent
    clemency boards to review clemency petitions and advise the
    President. This could eliminate biases and conflicts of
    interest inherent in the current system, which often relies on
    prosecutors at the Department of Justice to serve as a check on
    their own prosecutions. Members of such a clemency board should
    reflect our country's diversity and be representative of
    stakeholders inside and outside the criminal justice system.
        Mr. Chair, I believe that democracy is resilient, but it
    takes work to ensure that it lives up to its promise. It will
    continue to be stress tested. I urge the Committee to take the
    steps that are necessary to advance justice for all, protect
    the Rule of law, and end the racial inequities in our legal
    system. The pardon power is one important part of what must be
    a comprehensive approach.
        Thank you, Mr. Chair, and I look forward to the committee's
    questions.
        [The statement of Ms. Hobert Flynn follows:]

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        Mr. Cohen. Thank you very much, Ms. Hobert Flynn. I
    appreciate your testimony and your service with Common Cause.
        Our next witness is Mr. Josh Blackman. He is a professor at
    law at the South Texas College of Law in Houston, Texas, where
    he specializes in constitutional law, law and technology, and
    the study of the United States Supreme Court. He is the author
    of 59 published articles, three books, and numerous amicus
    briefs, and is the editor of a case book on constitutional law.
        He received his J.D. magna cum laude from George Mason
    University School of Law, where he served as articles editor of
    the George Mason Law Review. He received his B.S. magna cum
    laude from Penn State University--The Pennsylvania State
    University. He was a law clerk for the Honorable Danny J. Boggs
    of the U.S. Court of Appeals for the Sixth Circuit and for the
    Honorable Kim Gibson of the U.S. District Court for the Western
    District of Pennsylvania.
        Professor Blackman, you are recognized for 5 minutes.

                       STATEMENT OF JOSH BLACKMAN

        Mr. Blackman. Thank you.
        Chair Cohen, Ranking Member Johnson, thank you for inviting
    me to testify. My name is Josh Blackman, and I am a
    constitutional law professor at the South Texas College of Law
    Houston.
        People often think that the courts have a monopoly on
    interpreting the Constitution. They don't. As we speak, the
    House managers are trying President Trump for violating the
    Constitution, and here we will discuss the constitutional means
    to prevent abuse of the clemency power.
        In my brief opening remarks, I would like to make three
    primary points. First, I will discuss an important purpose of
    the pardon power. Second, I will consider proposed statutory
    regulations of the pardon power. Third, I will talk about H.R.
    4, a proposed constitutional amendment that would limit
    Presidential clemency.
        Today, people often view the pardon power as a form of
    error correction. For example, the courts made an error by
    imposing an unjust sentence or prosecutors pursued an unjust
    charge. As originally understood, clemency could serve a
    greater purpose.
        In Federalist No. 74, Alexander Hamilton identified the,
    quote, ``principal argument'' for the pardon power,'' quote,
    ``restoring the tranquility of the commonwealth.''
        Pardons do not merely help individuals. Presidents can
    issue pardons to advance broader public policies. Some of the
    most famous pardons in American history served this purpose.
    President Washington pardoned participants in the Whiskey
    Rebellion. President Jefferson pardoned those convicted under
    the Sedition Act. After the Civil War, President Johnson
    pardoned former Confederates.
        Each of these decisions was unpopular in some quarters. In
    each case, the President used his pardon power to pursue the
    common good as he saw it.
        This issue brings me to my second point. Last summer, this
    Committee marked up the Abuse of Pardon Prevention Act. I
    criticized this bill in a post I coauthored for Lawfare with my
    colleague Seth Barrett Tillman, who is a lecturer at the
    Maynooth University Department of Law in Ireland, and I will
    submit that post for the record.
        In short, this proposed bill would alter the Presidency
    such that he would now second-guess his official actions for
    fear of prosecution. Congress should not empower Federal
    prosecutors through the power of the criminal process to
    dictate what is the public interest.
        Third, this Committee is considering H.R. 4, a proposed
    constitutional amendment that would limit whom the President
    can pardon. I oppose this amendment. It attempts to
    constitutionalize a single conception of the public interest,
    what is and is not a proper pardon.
        The public interest is always contestable, because no one
    has the institutional knowledge to declare a monopoly on what
    is in the common good.
        The President should be able to make important decisions
    with vigor, independence, and dispatch. The President shall
    have the greatest latitude to issue pardons, precisely because
    the President should have the greatest latitude to pursue what
    he sees as the common good.
        Limiting the President's power to issue pardons will limit
    the President's power to promote what Hamilton referred to as
    ``the tranquility of the commonwealth.'' This amendment should
    not be adopted.
        Thank you for your time, and I will be happy to answer any
    of your questions.
        [The statement of Mr. Blackman follows:]

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        Mr. Cohen. Thank you, Professor. I appreciate your
    testimony.
        We now would like to recognize our next witness--and I am
    going to have to ask you to help with the pronunciation of your
    name. Is it Naftali? Professor Naftali, is that correct? I am
    going to presume it is correct.
        So, our next witness is Timothy Naftali, and I have seen
    him on television a thousand times--well, dozens of times--and
    I never get his name quite right. He is a clinical associate
    professor of public service, clinical associate professor of
    history, and director of the undergraduate public policy major
    at New York University.
        He focuses on national security and intelligence policy,
    international history, and Presidential history. He served as a
    consultant to the 9/11 Commission and recently coauthored a
    book called ``Impeachment: An American History.'' He is also
    the author of a December 2020 article in The Atlantic magazine
    titled ``Trump's Pardons Made the Unimaginable Real.''
        Prior to NYU, he served as the founding director of the
    Richard Nixon Presidential Library and Museum in Yorba Linda,
    California, and I kind of guess that he is considered the top
    expert on President Nixon.
        Professor Naftali received his Ph.D. and M.A. in history
    from Harvard, an M.A. with distinction from Johns Hopkins
    School of Advanced International Studies, and an B.A. magna cum
    laude with a distinction in history from Yale University.
        Professor Naftali, you are recognized for 5 minutes.

                      STATEMENT OF TIMOTHY NAFTALI

        Mr. Naftali. I wish to thank the chair, Mr. Cohen, the
    Ranking Member, Mr. Johnson, and Members of the House Judiciary
    Committee Subcommittee on the Constitution, Civil Rights, and
    Civil Liberties for the privilege of testifying to you today.
        Concerns about the breadth of the President's clemency
    power and the desire to in some way reform it are not new to
    this moment in our history. It is not solely a product of these
    deeply partisan times. It is not an unprecedented knee-jerk
    reaction to the conduct of our 45th President.
        According to Fordham University Law School's Democracy and
    the Constitution Clinic, on 41 separate occasions since 1974
    Members of Congress from both parties have introduced
    legislative proposals designed in one way or the other to
    modify the President's use of executive clemency. Over half of
    these initiatives were introduced before the year 2001.
        Indeed, 20 years ago, almost to the day, this Subcommittee
    held a similar hearing on the Presidential pardon. The catalyst
    then was concern and disappointment on both sides of the aisle
    in how and to whom President Clinton had issued 140 pardons and
    36 commutations on his final day in the White House--most
    notoriously, one to Marc Rich, a fugitive facing criminal
    prosecution for tax evasion, whose former wife was a donor to
    the Clinton Library.
        All the panelists two decades ago cautioned this
    Subcommittee not to amend the Constitution, reflecting
    confidence that the Clinton pardons would be an aberration
    because of the criticism they had inspired. Quote, ``I very
    much doubt that future Presidents will need to be restrained in
    their use of pardon power,'' one panelist argued, ``given the
    in terrorem example of the final Clinton grants.''
        I quote our distinguished predecessors with humility. Who
    knows how well today's testimony will age in 20 years, let
    alone the rest of us? I think I can say as a historian that
    history can only Act as a deterrent to bad behavior if we all
    know it.
        The last few months, let alone the last 20 years, suggest,
    at least to this scholar, that we were far too optimistic about
    Presidential pardon behavior 20 years ago. The Clinton pardons
    should have led to concrete Federal corrective action.
        Today, I will leave most of the discussion of legal
    precedents to my fellow panelists who are lawyers. Perhaps my
    value to you is in using this statement to share some history
    indicating the perils of an unreformed Presidential clemency
    power and how a few Presidents, one of whom later became Chief
    Justice of the Supreme Court, looked at the matter.
        The only President to have joined the Supreme Court after
    leaving office, of course, was William Howard Taft, and
    therefore he is a unique witness, if you will, on looking at
    the pardon from both the perspective of 1600 Pennsylvania
    Avenue and that of the Supreme Court.
        In a book that he wrote as a law professor before he came
    back to Federal service when he was appointed to the Court, he
    wrote, ``The duty involved in the pardoning power is a most
    difficult one to perform because it is completely within the
    discretion of the executive and is lacking so in rules or
    limitations of its exercise. The only Rule he can follow is he
    shall not exercise it against the public interest.''
        When he became Chief Justice, he had to look at a case that
    involved contempt of court. The question that was raised was,
    can the pardon be used in a way to protect those whose actions
    threatened our very system of justice?
        He concluded, yes, the pardon power is unfettered. But, he
    added, there is always the possibility of impeachment as a
    corrective action, as a deterrent.
        My belief in the need for corrective action is founded on
    what I learned about our Nation's 37th President, Richard
    Nixon, from publicly available materials at the Nixon Library
    when I was director.
        In my prepared statement and in our questions perhaps, I
    will detail or discuss the cynicism and the lawlessness that
    attached to President Nixon's approach to the pardon power.
    Although he did not issue the pardons that he dangled, his
    dangling of pardons not only became part of article I that was
    passed by your Committee in a bipartisan manner in 1974, but no
    doubt led to perjury.
        Therefore, even regardless of our 46th President, the Nixon
    precedent alone is an argument for not allowing this power to
    be unrestrained, particularly in a partisan age where the tool
    of impeachment, I would argue, is no longer as much of a
    deterrent on bad pardons as our Founders, who lived in a
    prepartisan age, assumed it would be.
        Thank you for your time. I welcome your questions.
        [The statement of Mr. Naftali follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Professor. Appreciate your being with
    us and your life's work.
        We will start with questioning now, and I will take the
    first round of questions. We will have, again, the 5-minute
    rule, and I will recognize myself for 5 minutes.
        First, I would like to ask Ms. Hobert Flynn, according to
    your testimony, President Trump's clemency grants overall,
    quote, ``created the appearance and reality of a two-track
    justice system, one for the President's associates and another
    one for everyone else.''
        Why is even the appearance of impropriety in the granting
    of a Presidential clemency so dangerous to our democratic order
    and the Rule of law generally?
        Ms. Hobert Flynn. Thank you for the question.
        One of the challenges is that we see the actions of our
    President can have real impact, and it can undermine people's
    view of government.
        One of the things that I think distinguishes President
    Trump's pardons from those of his predecessors, including
    pardons that are granted to the wealthy and well-connected--we
    saw other Presidents do this--was the challenge around many
    things that happened during his term.
        He dangled pardons as a way to signal that he would excuse
    anyone who refused to cooperate with the Mueller investigation
    and reward anyone willing to lie to them. He did just that when
    he pardoned Mike Flynn, Paul Manafort, and Roger Stone.
        As recounted in Special Counsel Mueller's report, Trump
    criticized witness cooperation with the Mueller team, referring
    to cooperation as flipping, and stating that flipping was not
    fair and almost ought to be outlawed. That is a quote.
        President Trump commented that it was very brave that his
    former campaign Chair, Paul Manafort, did not flip. In a
    response to a question about a potential pardon for Manafort,
    Trump said, ``It was never discussed, but I wouldn't take it
    off the table. Why would I take it off the table?'' end quote.
        Meanwhile, President Trump's lawyer, Rudolph Giuliani,
    raised the possibility of a pardon for Manafort in interviews
    with the press, telling the New York Daily News, for example,
    ``When the whole thing is over, things might get cleaned up
    with some Presidential pardons,'' end quote.
        These kinds of actions raise the specter that the President
    is above the law and can use something like a tool, the
    Presidential pardon, in ways to help himself. That is not what
    the Founders thought of when they were talking about the
    pardon.
        The power of the pardon is extensive, but it needs to be
    viewed in the context of other provisions of the Constitution.
    It requires the President to uphold the law and the
    Constitution. So, this is not a tool to put his own worries
    about how he could be judged in the Mueller investigation in
    terms of Russian interference.
        Mr. Cohen. Ms. Hobert Flynn--
        Ms. Hobert Flynn. His activity is undermining to people's
    view of their government.
        Mr. Cohen. In fact, let me go to Ms. Fredrickson, although
    you will be just as good a witness for this.
        The appearance of a conflict of interest is important.
    Professor Blackman said certain changes should not be
    constitutionalized in granting clemency because of a single
    conception of the public interest.
        Well, aren't there certain classes of people, Ms.
    Fredrickson, that would have an inherent conflict, such as
    family Members or possible close associates, that it would
    destroy the public's belief in the integrity of the Presidency
    and of the clemency process and of justice for all, equal
    justice for all?
        Ms. Fredrickson. Well, I think that is absolutely true, Mr.
    Chair, that there are certain classes of people for whom the
    grant of a pardon raises immediate questions about conflicts of
    interest, self-interestedness, and lack of public interest.
        As Chief Justice Marshall said in 1833, the pardon power is
    supposed to be an Act of mercy. That is the historical origins
    of it. That is what the Framers of the Constitution believed it
    was designed to do. It was a benevolent power. It wasn't a
    power to grant one's self and one's family a get-out-of-jail-
    free card or the ability to solicit funds for campaign
    donations in exchange for a pardon.
        Mr. Cohen. Let me ask you this, Ms. Fredrickson. My 5
    minutes are about up. You mentioned in your testimony about
    somebody that committed like $25 million worth of fraud, and
    there was something, I think, a pardon of a man in Florida who
    had done Medicaid fraud and a man in another State that had
    done different fraud. There were a bunch of frauds in the tens
    and tens of millions of dollars.
        Could that in any way be seen as just as one of the
    statements about just the difference of opinion of the
    political parties and how they view justice?
        Ms. Fredrickson. Well, that is starting to get into the
    gray area. I think the Committee and the legislation that we
    are considering is most appropriately focused on quid pro quo
    pardons, which are certainly out of bounds.
        I think the constitutional amendment would clearly--could
    clearly get at a more circumscribed view of the public
    interest. I don't understand how it could be in the public
    interest to pardon somebody who has ripped off the government
    and Medicare for $75 million worth of funds by encouraging ill
    senior citizens to have more treatments than they needed. It is
    hard to contemplate how that could possibly be in the public
    interest.
        Mr. Cohen. Thank you, Ms. Fredrickson.
        My time is over, and I would like to recognize the Ranking
    Member, Mr. Johnson, at this point.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair.
        I have got a few questions for Professor Blackman. I just
    wanted to start first and clarify something. Isn't it true that
    the Supreme Court has long affirmed that the President's pardon
    power is not subject to any legislative control at all?
        Mr. Blackman. Absolutely. Going back almost 160 years,
    there is a case called Ex parte Garland. In that case the
    Supreme Court held that there is basically no limitations in
    the pardon power. This really hasn't been challenged by the
    Supreme Court. They have reaffirmed in other cases since. So, I
    think your reading of the case law is correct, Representative.
        Mr. Johnson of Louisiana. So, thank you for clarifying
    that. I think it is important for the full context of all this.
        As you noted, you publicly opposed House Joint Resolution
    4. Among other things, it would invalidate any pardon issued
    for a corrupt purpose. That is the quote, the language taken
    right out of the resolution.
        What is your understanding of that phrase, and why is that
    so problematic?
        Mr. Blackman. I think it is really important we focus on
    the word corrupt. The Chair mentioned this word corrupt. My
    good friend, Caroline Fredrickson, mentioned the word corrupt.
    This is a word on which people disagree.
        Federal prosecutors often have a lot of difficulty proving
    what is a corrupt intent. The classic example, I give a
    politician a suitcase full of cash in exchange for some sort of
    public service. Okay. I am okay with it. That is corrupt.
        When we are talking about something a little bit more
    blurry--for example, when someone says there is some sort of
    unjust prosecution, and he determines that, in order to end
    this unjust prosecution we need to issue a pardon--under the
    proposed statute, that could be a thing of value, right? You
    are giving a thing of value to perhaps end an investigation.
    That is certainly a public Act and one which the President has.
        I would be very hesitant to push the boundaries of what is
    and is not a bribe in a constitutional amendment or the
    proposed statute.
        Mr. Johnson of Louisiana. Thank you for that.
        House Joint Resolution 4 is not the first time, of course,
    that our Democratic colleagues have used legislation about
    pardons to target President Trump. Last Congress,
    Representative Adam Schiff introduced H.R. 7694, the Abuse of
    the Pardon Prevention Act. This Committee reviewed that
    legislation last summer.
        Professor, you authored an article concluding that the bill
    would have criminalized politics. Can you elaborate on that a
    little bit, explain what the problem is there?
        Mr. Blackman. Sure. I think the statute suffers from a
    similar problem that the amendment does. It uses this word
    corrupt and allows Federal prosecutors to decide when the
    President is acting in the public interest and when he is not.
    Basically, corrupt is going to be the opposite of whatever the
    prosecutor thinks is in the public interest, and I think it is
    dangerous.
        The pardon is a political act, it is a public act. I
    actually agree with Chair that the secret pardons are
    problematic, and I am going to go with him on that one. To the
    extent that these pardons are public, the President takes the
    political flak for it. If there is an abuse of power,
    impeachment is the remedy. James Madison said so 200 years ago.
        I don't think that legislation or even an amendment is the
    right way to ex-ante, in advance, try to limit this authority.
        Mr. Johnson of Louisiana. Very good.
        This may be my last question. We are running out of time. I
    was intrigued by what Professor Naftali just testified to and
    his premise that there are some pardons that are so egregious
    that it really does require amending the Constitution or some
    other corrective action, as he said. He noted President
    Clinton, who is probably the most notorious abuser of the
    pardon power, at least in the modern era, for all the things he
    did.
        I wonder what your reaction is to your colleague there.
    Although there are some very egregious examples, does that mean
    now that we should change the Constitution wholesale?
        Mr. Blackman. I think--and I am grateful for my friend,
    Professor Naftali's remarks--I think the remedy should be after
    the fact, not before the fact. Today, we are seeing that they
    can impeach a former President. Apparently, that is the new
    rule. So, if a President decides to engage in sort of
    misconduct in the last month or two of his term, there are
    political remedies.
        I think trying to legislate in advance is problematic,
    because now whenever the President considers, ``Do I issue a
    pardon, do I not?'' he is always thinking, ``Man, if I issue
    this pardon, I am going to get in trouble,'' or, ``Some Federal
    prosecutor, the next Robert Mueller, will try to indict me
    because I issued this pardon.'' That is a chilling effect I
    think is problematic. I think that this body, Congress, needs
    oversight after the fact rather than chilling beforehand.
        Mr. Johnson of Louisiana. I have got 30 seconds left. Let
    me just ask you a mechanical question, because there is a lot
    of confusion about it. What is the role of the Department of
    Justice's pardon attorney in all this, the recommendations they
    make?
        Mr. Blackman. The DOJ is purely advisory. The Attorney
    General and his subordinates make a recommendation, but
    ultimately it is for the President and the President alone who
    decides whether to check yes or no in that pardon box.
        Mr. Johnson of Louisiana. Very good.
        With 7 seconds left, I will yield back, Mr. Chair.
        Thanks to all the witnesses.
        Mr. Cohen. Thank you. Thank you, Mr. Johnson.
        Next for questioning is Ms. Ross, a new member from North
    Carolina.
        You are welcomed, and you are recognized.
        Ms. Ross. Thank you so much, Mr. Chair.
        Thank you to all the witnesses. This has been a fascinating
    morning. Thank you for your perspectives and for your
    scholarship.
        I have a couple questions for Ms. Fredrickson, just to
    narrow down when there could ever be an abuse of the pardon
    power. The first question is, can the President's exercise of
    the pardon power, clemency, ever violate our current criminal
    laws prohibiting obstruction of justice or bribery?
        Ms. Fredrickson. Thank you very much for that question. I
    did have to--I was neglectful in not saying to my colleagues
    from academia and from advocacy what a pleasure it is to be
    here. Josh and I go way, way back. I have to say I first met
    Josh when he was a young law clerk. Anyway, so we are good
    friends, and it is good to be here.
        Your question is a very important one, and I appreciate it.
    As I stated in my written testimony, there is actually already
    wide consensus that certain kinds of pardons could be
    considered criminal acts. That is, in the example that
    Professor Blackman used, I think the bag of cash, or the
    suitcase of cash, I like bag of cash better, it has more--a
    better visual. So, the bag of cash in exchange for a pardon.
        Most scholars, most constitutional experts believe that is
    already a criminal action. Efforts to obstruct a judiciary
    proceeding would also, to suborn testimony of a witness, for
    example.
        However, one of the things that this, the legislation,
    would do is to clarify it, clarify the statute, to make it even
    more clear that the bribery statute applies to the President
    and Vice President and that a pardon is a thing of value. So
    that is why, although the law is well understood already to
    cover that type of behavior, it would be prudent to make it
    more explicit.
        Ms. Ross. Okay. Well, you have done a great job, because
    you have already answered my second question in answering my
    first question. So, thank you for that.
        Then my next question really goes to the issue of, so, if
    the President does violate this criminal law, the bribery
    statute, or obstruction of justice, either in its current form
    or if it is amended, the Department of Justice has said that a
    sitting President cannot be criminally prosecuted.
        Do you agree with that? Or do you believe that it would
    have to wait until after the President completed his or her
    term?
        Ms. Fredrickson. Well, I don't tend to agree with it as a
    legal matter. As a prudential matter, it makes a certain amount
    of sense to postpone such an activity until after, and it
    really depends on what the criminal Act was.
        However, it certainly is generally expected that, in the
    case of the abuse of a pardon, it would happen after a
    Presidency, because most pardons, especially ones that are
    highly controversial, like the Marc Rich or Steve Bannon
    pardons, are issued often even on the fading last moments of a
    Presidency.
        So, unless there is some--I think Professor Blackman, who
    seems to concede that one can impeach a President who has left
    office for questionable pardons, but one could also certainly
    criminally prosecute.
        Ms. Ross. Okay. So, I just want to be very clear with this
    last minute.
        You see, after the President has left office, two avenues
    to pursue a Presidential violation of the law for obstruction
    of justice or bribery. Of course, the Congress could impeach,
    that, itself, is in the Constitution, after the grant of the
    pardon power, but there also could be a criminal prosecution
    brought by the Department of Justice or a Federal prosecutor.
    Is that what you are saying?
        Ms. Fredrickson. Yes. I would actually want to quote then
    Senator and future Attorney General Jeff Sessions, who, in
    speaking about the Marc Rich pardon, said it qualified,
    absolutely. He couldn't find a better example of quid pro quo
    bribery and it was a criminal act. There are certainly many
    conservative scholars who share that perspective.
        Ms. Ross. Thank you very much.
        Mr. Chair, I yield back.
        Mr. Cohen. Thank you. Thank you, Ms. Ross.
        If I am incorrect in my order, Mr. Johnson, you can correct
    me. It is your team. I think Mr. Jordan would be next or Mr.
    McClintock. Mr. Johnson, who wants to seek recognition next,
    Mr. Jordan or Mr. McClintock?
        Mr. Johnson of Louisiana. We will probably go to Mr. Jordan
    if he is ready.
        He may not be. That is okay. Let's go to Mr. McClintock.
    Thank you.
        Mr. Cohen. You are welcome.
        Mr. McClintock. Oh, great. Thank you, Mr. Chair.
        Perhaps the most egregious recent example of politicized
    prosecutions came with the Mueller proceedings, the prosecution
    of Michael Flynn. Mueller's prosecutors falsified documents to
    the FISA Court. They withheld material evidence from the court.
    They held interviews under false pretenses. They operated in an
    entirely partisan manner, where Republicans were singled out
    while the actions of Democrats in initiating the entire Russia
    collusion hoax went ignored.
        Just because the targets of this politicized process were
    associates of the President doesn't make these actions any less
    egregious or the injustice any less offensive or the remedy any
    less necessary.
        There were a number of pardons issued by President Trump
    and his predecessors that I have cringed at, and I am sure I
    will be outraged at pardons this President will make. I think
    the importance of the pardon power in rendering justice in
    matters like the Mueller investigation argue against any
    limitations on it.
        I can't believe the Founders didn't give great
    consideration to the frailties of human nature in assigning
    this power to the President.
        Professor Blackman, could you discuss in greater detail the
    reasons the Founders offered in writing this provision of the
    Constitution as they did and how they might reply to some of
    the objections you have heard today?
        Mr. Blackman. Thank you so much, Representative. The
    Framers modeled the pardon power after their prerogative of the
    king, which is basically an almost absolute power. There are
    two limits: Only pardon for Federal offenses, and you can't
    pardon impeachment. Beyond that, there is really no discretion.
        During the constitutional convention, there were debates
    about whether the Congress should have a role in the pardon
    power. For example, whether the Congress must approve of a
    pardon. Those proposals were voted down.
        I think the history tells us that the Framers viewed this
    power to be residing in a single person, the President. I see
    over your shoulder George Washington, our first President, he
    very famously issued pardons for those who were in Whiskey
    Rebellion. This was basically an uprising, insurrection,
    perhaps not too dissimilar to what people think happened a few
    weeks ago at the Capitol. Washington pardoned the people in the
    Whiskey Rebellion to make peace, to bring tranquility to the
    Nation. It was controversial in some quarters, but I think he
    did a lot of very important work. I think it is why one person,
    the President, should have discretion to decide how to pursue
    the common good.
        Mr. McClintock. Well, I am sure they must have foreseen,
    just human nature being what it is, that there would be a
    President who would issue pardons for partisan reasons, for
    personal reasons. I can't believe they didn't take that into
    consideration when they wrote this provision. What would they
    be saying about some of the arguments we have heard from the
    other side?
        Mr. Blackman. Well, there were debates in the Philadelphia
    Convention as well as the Virginia Ratifying Convention about
    the abuse of pardon power.
        George Mason, who was invoked earlier, was very much
    worried about the President basically using the pardon to cover
    up his own crimes. James Madison said the remedy in that case
    is impeachment. I think that is probably the right answer.
        The pardon itself will remain valid, and the President
    could be convicted, removed from office. Apparently now under
    the prevailing wisdom, he can be convicted even after he leaves
    office. So, there is still some teeth in Congress for you to
    punish him. Again, these are public acts. Right? I don't like
    the secret pardons. That is not how this is supposed to work.
    The public act, we know what it is, and the President can be
    judged politically for his actions.
        Mr. McClintock. Thank you.
        Mr. Blackman. Thank you.
        Mr. McClintock. I will yield back.
        Mr. Cohen. Thank you, Mr. McClintock.
        Next is the distinguished gentleman from the great State of
    Georgia, the Peach State, and the home of the Atlanta Airport,
    and one of my favorite chicken restaurants, Mr. Hank Johnson.
    Is Mr. Johnson there?
        Mr. Johnson of Georgia. Just trying to get unmuted, Mr.
    Cohen. I want to thank you, Mr. Chair, for holding this very
    important hearing. I am looking forward to serving on this
    Subcommittee and to participating in the important work of
    repairing our Constitution.
        Like so many parts of our Constitution, the pardon power
    has been repeatedly abused over the past 4 years. In the cases
    of Roger Stone, Paul Manafort, Michael Flynn, Steve Bannon, and
    so many others, Donald Trump used the pardon power to shield
    himself and thus obstruct justice, and to help cronies rather
    than using that unbridled power to correct injustice and excess
    in the criminal justice system. His abuse of the pardon power
    was egregious and unprecedented and shocks the conscience.
        Ms. Fredrickson, why didn't the Framers include limits on
    the use of the pardon power in the Constitution? Do you believe
    that there should be limits on the use of the pardon power?
        Ms. Fredrickson. Well, thank you very much for that
    question. I have to say I unfortunately don't know the
    restaurant that Chair was referring to, but I would like to
    find it next time I am in your district.
        So, I think it is hard to know from the discussions exactly
    the scope of their thoughts around the pardon power. But,
    historically it had not been considered for use outside of this
    idea of being used as a benevolent power or as an Act of grace.
        So, although George Mason did raise his concerns and his
    worries were assuaged by James Madison, as was mentioned, this
    was sort of novel territory, in many ways because the King
    himself would have not been subject, for example, to
    prosecution in the normal court system. So the idea of a self-
    pardon, for example, and things like that were just not things
    that had been contemplated.
        Then, of course, as Professor Blackman said, that
    impeachment was seen as a possible approach to that kind of
    abuse of pardon. Again, I emphasizing why it is a legally
    correct position to be able to prosecute--or to impeach a
    President after leaving office because otherwise you can never,
    in the theory of--that pardons can't be prosecuted, you could
    never actually get after that kind of an action. I think that
    there was not really a contemplation of the kind of criminal
    actions that might take place that a pardon might be used for,
    which does not mean that the Founders thought that everything
    possible that a President could do was exempt under his article
    II of section 2 powers to pardon.
        Mr. Johnson of Georgia. Well, let me ask you this, during
    the Trump Administration, we watched time and time again as
    President Trump shamelessly dangled the promise of a pardon to
    keep potential witnesses against him silent. To your knowledge,
    has any other President in the history of this country ever so
    abused the pardon power?
        Ms. Fredrickson. Well, as Professor Blackman has noted,
    there has been this possibility of secret pardons. So, to some
    extent, we may not know. But certainly this past 4 years has
    raised significant, significant concerns about the pardon being
    used as an obstructive device, as a way of obstructing justice,
    as a way of obstructing actual proceedings in court, which I
    think there, as I said earlier, it is a very widely-held
    position. That those kinds of actions are actually crimes in
    and of themselves. So, therefore, even if the President could
    pardon somebody, for an initial act, the Act of exchanging a
    pardon for suborning testimony would be a crime separate from
    the one that was pardoned by the President and could be subject
    to prosecution.
        Mr. Johnson of Georgia. Well, let me ask--thank you, ma'am.
        Let me ask Ms. Hobert Flynn, did President Trump's abuse
    and perversion of the pardon power do damage to our democracy?
    If so, how?
        Ms. Hobert Flynn. I think it has done damage to our
    democracy because it sends a message, which President Trump
    talked about frequently, that he somehow is above the law. He
    talked about shooting someone in the street and nobody doing
    anything about it. Pardoning people who could testify against
    him shows an abuse of the pardon power, and it is one where
    Americans want to see guardrails put on again, and commonsense
    solutions to be tackling some of these issues.
        Mr. Johnson of Georgia. Thank you.
        Mr. Naftali, after President Trump's excesses, how should
    Congress Act to curtail the abuse of the pardon power?
        Mr. Naftali. Well, I thought I would repeat that I am not a
    lawyer. So, I am going to speak as someone who studies power as
    a historian.
        I believe that, as Chief Justice Taft wrote in ex parte
    Grossman, that there is in a sense, there are checks and
    balances on the pardon. That we should see the pardon within
    the framework--I am going beyond what Chief Justice said--
    within the framework of our constitutional checks and balances.
        If we find evidence that a President has either ignored the
    restraints that our Founders hoped would be on him, or someday
    her, or we find that those restraints were not sufficient, we
    have to ask ourselves whether Congress, as part of its role and
    responsibility in maintaining the system of checks and
    balances, ought to take corrective action.
        I argued in my testimony, not talking about Donald Trump
    but talking about Richard Nixon, that you have body of
    remarkable evidence of corrupt intent that is available to
    everybody in this country. What Richard Nixon understood was
    that no one could stop him. He came up with a series of corrupt
    ideas for using the pardon. He was going to have an amnesty, he
    was going to pervert the concept of amnesty, which had been
    used previously in our history, Professor Blackman talked about
    the amnesty for Whiskey Rebellion. Those for the Whiskey
    Rebellion. There were amnesties after the Civil War. There was
    an amnesty that President Carter signed regarding the Vietnam
    War.
        President Nixon perverted that idea to find a way to cover
    releasing the Watergate burglars. So he looked for Democrats,
    in this case, anti-war dissenters, Members of Vietnam Veterans
    Against the War who had been indicted--and ultimately, by the
    way were cleared of this--had been indicted for planning to
    disrupt the 1972 Republican Convention. He said: Please keep
    them under indictment, hold them under indictment. This is on
    tape. He said: I need--we need them under indictment so that,
    after the election, we can let them go; I will pardon them, and
    I will pardon the Watergate burglars. That way there will be
    pardons on both sides. Then his chief of staff, White House
    Chief of Staff Bob Hartmann, said: You know, we don't have
    enough of these dissenters in jail. There are only six of them,
    the implication, and there are seven Watergate burglars. He
    said: We can find reason to arrest more veterans, Vietnam
    veterans, who are dissenters or put them in jail so that we
    have a balance.
        Now, that is absolutely the most corrupt way of thinking of
    the pardon, but they thought this way. Now, the question we
    need, as Americans, to think about is whether the Nixon team
    were an aberration? Were they the only corrupt people ever to
    be in the White House? Were the only people--was President
    Nixon the only American President who saw this pardon as a get-
    out-of-jail-free card, as a way for manipulating our judicial
    system for political personal gain? I don't think.
        Regardless of what you think about Donald Trump--and I am
    making this point here that there is enough evidence for
    corrective action without even talking about the 46th
    President.
        Now, my view of the 46th President is public. I have
    written about my concerns about his use of the pardon, about
    other elements of his Administration, but I am not making an
    argument for corrective action on the basis of Donald J. Trump.
    I say there is enough historical data that the system wasn't
    working before him. Now the outrage of those worried about the
    Trump era should combine with the continuing outrage of people
    worried about the Clinton era. You should work together.
        My preferred approach would be a constitutional amendment.
    I am not a lawyer. My sense here is that the Founders, God
    bless them, right--the Founders made a few mistakes. In fact,
    that generation admitted it. They didn't think there would be
    parties. So, they put together an electoral system that
    resulted in a tie vote because they never imagined that a
    President or Vice President would run on the same ticket.
        Mr. Johnson of Georgia. Well, we are still cleaning up
    wreckage after two Republican Presidents. I think your
    testimony is quite elucidating, and I thank you for it.
        With that, I will yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        Thank you, professor. Thank you for gauging it in terms,
    which is what this Committee has intended to do is a bipartisan
    approach to correcting a problem that has been bipartisan
    misused on occasion.
        Mr. Roy, you are recognized next.
        Mr. Roy. I thank Chair. I first want to just say thank you
    for recognizing our colleague, Ron Wright at the outset of this
    hearing.
        Mr. Chair, it means a lot. He was a good friend, a fellow
    Texan. We are all praying for his family, his wife, Susan. I
    will look forward to celebrating his life later this week.
        Secondly, I would like to just, you know, raise one issue
    that I think I heard from one of the witnesses, Ms. Flynn,
    about the extent to which pardons were used to reward White,
    wealthy friends, including war criminals, corrupt insiders, all
    of these actions remains a cynical, corrupt separate system of
    justice under President Trump.
        The pardon power has been used at the very beginning for
    political purposes. We can go back to Jefferson. We can go back
    to every President has done something. I would say, I guess,
    that Mr. Naftali was basically trying to say that this is a
    systemic problem, that it cuts across both lines.
        That kind of a partisan attack on President Trump, I just
    wanted to say that I think that there are some people that
    might take issue with it. Like Alice Mary Johnson, like a host
    of people, the criminal justice reform activist for advocating
    that President Trump helped, and that the President did in fact
    help. So that broad, broad stroke characterization, I think it
    is wrong and unfortunate and shouldn't characterize this
    hearing. The Chair is trying to put together an objective
    hearing here to try to figure out what we might want to do on
    the pardon power. So, I think that is an important part of
    this.
        I would also note there has been a number of controversial
    pardons, I know that we have talked about every single one of
    them cutting across both lanes. Indeed Chair of the Judiciary
    Committee, Chair Nadler, was instrumental in punching for
    pardon of the Rosenbergs, that were a part of the bombing of
    the United States Senate in 1983.
        It is not the first time the Capitol has been attacked.
    This kind of thing has happened. I hope that some of the people
    involved this year end up in jail like the Rosenbergs. The
    Chair of this Committee asked Bill Clinton to pardon these
    individuals who literally blew a bomb off of the United States
    Senate, targeting Members of the body in the Capitol. So, this
    is obviously nothing new, and something that I think we ought
    to be thinking through.
        The one question I would have--Mr. Blackman, I would like
    your opinion, as we talk about reforms, one of the primary
    concerns I have about the draft amendment to the Constitution--
    the Texas Constitution--and look, far be it for me to ever say
    anything negative about the great State of Texas--but the Texas
    Constitution is, I don't know, 400 pages. I don't know. It is
    long. It is a lot of basically statutory-type language in that
    constitution. Mr. Blackman, Professor Blackman, you probably
    know that. I believe it is critically important that the United
    States Constitution is not that, but it sets out high-level
    principles, structures of government, Bill of Rights, things
    that we order as in the balance of power between Washington and
    the States.
        My concern about this measure is that it starts getting in
    the weeds. When we start getting into the weeds in the
    Constitution, I think that is a problem. I agree it requires
    amendment and then amendment and an amendment every time you
    change your views.
        If we are going to do anything, why wouldn't there be
    something here that would say, look, one of the problems we
    have is these pardons tend to occur on January 19th or 20th?
    They tend to occur right at the tail end when you are in the
    lame duck. Maybe you say that you could, maybe if you are going
    to do a structural limitation that might cut across on a
    bipartisan basis, maybe say pardons have to be finished prior
    to elections of the President's term or something along lines.
        I guess what I am saying is, if you are going to have a
    reform, wouldn't it be better to have a structural reform like
    that something than something that gets in statutory bases with
    respect to family Members? Are we going to say that John
    Kennedy couldn't have pardoned Bobby Kennedy if there was
    something that he felt was important to pardon just because his
    brother happened to be the Attorney General? I don't think that
    is a good path to go down, in my view.
        Professor Blackman, do you have any thoughts on that?
        Mr. Blackman. I actually did some research, and there were
    many proposed amendments. Representative Barney Frank of
    Massachusetts proposed an amendment in 2001 that did exactly
    what you suggested. It would ban pardons from October through
    January 21st of an election year. So, basically before the
    election until after the inauguration, no pardons could be
    issued. As far as I know, no action was taken on that
    amendment, but that is almost exactly as you said, sir.
        Mr. Roy. Well, I appreciate that. I don't even know that is
    right solution. I was literally kind of just mulling that as we
    were sitting here talking. Because I don't think the right path
    is to go down in the specifics--in the direction that has been
    laid out here before the committee.
        I appreciate that answer, and I will yield back my time
    here in a second. I just think, let's keep this objective as we
    can and recognize a significant amount of work done by the
    Trump Administration to help people in criminal justice reform,
    cutting across color, faith, et cetera, and that every
    President has issued some pardons that every single one of us
    would think was somewhat question able.
        I yield back, Mr. Chair. I appreciate it.
        Mr. Cohen. You're welcome, Mr. Roy. I appreciate your
    questions. I am not wedded to any principle. I look at ideas,
    and we will move from there.
        Next, we will recognize another Houston, Texas--another
    Texan and another Houstonian, Ms. Sylvia Garcia.
        Ms. Garcia. Thank you, Mr. Chair.
        Please know that we have got some great chicken in Texas. I
    know we are known for barbecue and Tex-Mex, but we also have
    chicken. I actually subscribe to a fried chicken blog. So, if
    the interest is fried chicken, I have got the list of the best
    fried chicken places in Texas.
        So, with that, I want to get to Ms. Fredrickson and ask her
    a couple of questions. You mentioned, as Mr. Blackman and even
    Chair, a secret pardon. So, is there such a thing? Have secret
    pardons been revealed at a later time? Have there been any? I
    am just really intrigued by the whole notion.
        Ms. Fredrickson. Well, I am not aware of any secret pardons
    being revealed after the fact, but there is certainly a
    question, a legal gray area of whether pardons can be issued in
    secret. Now, the thing that is clear is that if somebody
    actually is being prosecuted and they want to prevent that,
    they have to come forward and say they have been pardoned. So,
    in a way, that is how we would have learned if a secret pardon
    had been issued.
        I would like to, if you don't mind, just speak to
    Congressman's Roy's point about bipartisan potential of this
    issue and Chair and to say that certainly I think adding to
    or--to consideration, structural reforms, such as the timing
    issues, but also transparency issues. I think Professor
    Blackman and I are very much on the same wavelength that a
    pardon absolutely must be under the public eye.
        Other things that I think would be really important would
    be to structure the pardon attorney in such a way that there
    would be deep involvement, which would also be transparent,
    just proposed by legislation, the transparency of the pardon
    power, but to structure the pardon attorney role so that there
    would actually be a more benevolent aspect to it because I
    think one of the rightful criticisms has been that even in the
    Pardon Attorney's Office, prosecutors are often very reluctant
    to move forward, very worthwhile legitimate requests for
    commutation and pardon, and having a more active presence of
    those who are seeking justice for those who have been over--for
    overincarceration, or for oversentencing for the injustice of
    the criminal justice system.
        Ms. Garcia. Well, you have actually anticipated my line of
    questioning because exactly what I was going to ask you next
    was about the role of DOJ and the pardoning attorney or the
    section, I am not sure if it is a section or division. But one
    of the things--reports that were out there is if the former
    President just ignored any recommendations and pretty much
    closed their role and they were not involved in many of the
    pardons that he did issue. Do you think that was part of the
    problem with a lot of the criticism that he got in some of his
    pardons? Would it be a fix that we can make to make sure that
    it is structured so that there is always a role for DOJ and the
    pardon attorney?
        Ms. Fredrickson. Well, I think it is a rightful criticism.
    One of the aspects of President Trump's pardoning was the very
    limited role of the pardon attorney, which does serve as
    advisory capacity now. Even those very deserving people who
    were pardoned from the criminal justice system often only
    received a pardon because of the intervention of a celebrity,
    like Kim Kardashian, and that is unfortunate.
        Again, as I said, I think that there have been criticisms
    in all Administrations of the pardon attorney not being
    attentive enough to the failures of our criminal justice system
    and having a broader understanding of which types of
    individuals to move forward.
        It was mentioned about how many pardons and commutations
    President Obama issued, about 1,700. There were almost 8,000
    petitions that were left unaddressed, maybe rightfully so.
    Again, I think that is because the Pardon Attorney's Office
    is--may have some inappropriate--needs to be more affirmatively
    directed towards recognizing the injustice of our criminal
    justice system.
        Ms. Garcia. Well, thank you.
        Mr. Chair, with only 8 seconds left, I will go ahead and
    yield back.
        Mr. Cohen. Thank you. Thank you, Congresswoman Garcia.
        I wasn't really thinking of fried chicken. Pascal's in
    Atlanta is what I was thinking, and they have got the best
    boiled chicken. That is just for Ms. Fredrickson's information.
        Representative Fischbach, you are recognized next.
        Mrs. Fischbach. Well, thank you very, very much. I
    appreciate that, and I am coming to you from the beautiful
    State of Minnesota, where we are below zero here, but I am warm
    inside so I appreciate the opportunity to take a couple of
    minutes.
        Mr. Johnson and Mr. McClintock really covered some of the
    things that I wanted to ask. I thought that I may just take the
    opportunity to offer Professor Blackman a few minutes, just to
    stand on that issue of legislative involvement in the
    Presidential pardon issue. It is something that I am interested
    in, and if you could have additional comments.
        Mr. Blackman. Sure, sure. Well, thank you so much
    Representative, I appreciate the chance. I am hearing some
    interference in the background. It is a little hard to speak. I
    think it is another--someone is not on mute.
        I think the role of Congress here is important. I think the
    role, though, should occur after the fact, in terms of
    oversight. In the event that the President issues, perhaps, a
    pardon that Congress deems unjust or inappropriate, that is
    something Congress can investigate.
        What I would hesitate is to put limitations on whom the
    President can issue a pardon to and how that pardon can be
    issued. I will just use H.R. 4 as an example. I will read from
    it. It says, ``A pardon issued for a corrupt purpose shall be
    invalid.'' The amendment does not define what is a corrupt
    purpose. It leaves it hanging. A lot of us here are attorneys,
    not all of us are.
        When Congress doesn't define a statute, that lets someone
    else to define it. It can let Federal prosecutors define the
    statute, and it can let courts define the statute. Great? It
    lets courts find this language. I think if Congress wants to
    actually prohibit some specific act, they need to do something
    more than to say ``corrupt purpose'' because that's not
    something that is self-evident. That is not a term that
    everyone understands. If you think of any term that we have
    argued about in the courts, emolument, right? People argue
    about these things.
        So, if this body wants to put an amendment to prohibit
    certain kinds of actions, they should spell them. What does
    that mean to be corrupt? I think bribery is already prohibited.
    The Constitution says you can impeach for bribery or impeach a
    bribe, and OLC has said you can prosecute a President for
    bribery.
        There is a difference between bribery and corruption,
    right? Corruption is one of these catch-all provisions. Chair
    Cohen said a catch-all provision that can sweep in a lot of
    conduct. That is perhaps unpopular, but I don't think it fits
    within the traditional conception of an illegal offense.
        Mrs. Fischbach. Thank you very much. I will yield back the
    remainder of my time.
        Mr. Blackman. Thank you.
        Mr. Cohen. Thank you, Representative Fischbach, and stay
    warm.
        Mrs. Fischbach. We are trying. We are trying.
        Mr. Cohen. Okay. I am sure. Our next Congressman has 5
    minutes is our--another freshman from up the river,
    Representative Bush.
        Ms. Bush. Thank you. St. Louis and I thank you, also,
    Chair, for convening today's crucial hearing.
        It is without question that Donald Trump did away with all
    Presidential norms. Donald Trump's use of the pardon power will
    forever be associated with nepotism and corruption. It made
    clear that, under Donald Trump, an Act of mercy is given to
    wealthy donors, well-connected friends, his cronies, and his
    White supremacist allies. Under Trump, the pardon power became
    an extension of the privilege afforded to the rich and
    powerful.
        Meanwhile, 14,000 clemency applications are languishing in
    the bureaucracy of the Department of Justice. Thousands of
    people with no connections to the upper echelons of power and
    access are left with limited resources, caged and behind bars
    as the devastating uncertainty of COVID-19 runs rampant.
        The pardon power is not the problem. The problem is that it
    has not been used enough to correct for systemic injustices.
    Take, for example, Byron Miller. Byron was born and raised in
    Missouri's First District right here in St. Louis. He was
    convicted on Federal drug charges at 28 years old. He is now
    53, living with hypertension and asthma, fearing for his life
    as COVID-19 makes its way through our prison.
        Byron's mother is now 80, his father has cancer, and his
    daughter was only 6 years old when Byron was sentenced. His
    absence is deeply felt in his family and in his community.
        These are the kinds of people our Presidents are leaving
    behind, people like Byron who are aging behind bars, and
    others, who had they been sentenced today, would be serving
    much less time, if any at all.
        The pardon power was created as a virtually unchecked power
    of the Presidency. This extraordinary power can be a powerful
    tool of freedom. In the context of our punitive carceral
    system, the pardon power allows Presidents to put humanity over
    greed, justice over violence, and righteousness over power.
        Our country is in the midst of a national reckoning on
    racial justice. For far too long, we have oppressed, exploited,
    policed, and criminalized Black and Brown communities. We are
    in need of national healing. This moment requires
    transformational change. It's the kind of change that can be
    done with the stroke of a pen.
        Ms. Hobert Flynn, you talk about the use of the clemency
    power as a tool to address racial discrimination. What role can
    it play in addressing racial disparities in the criminal legal
    system?
        Ms. Hobert Flynn. You are right that so many people who did
    not have access to a process, someone that knew Trump--and this
    has happened with other Presidents to be clear, Clinton and
    others--if they don't have someone to help them, that can be a
    real challenge.
        Congress can explore legislation to create an independent
    clemency board to review petitions for pardons and commutations
    and advise the President, removing the process from the DOJ
    because there is a conflict when DOJ prosecutors reject some of
    the prosecutions that they have had.
        This could be a check and a new vehicle for this to go
    directly to the President. I think the President also can look
    to create and streamline the process for clemency, taking it
    out of the DOJ. I would encourage looking at Deborah Leff, who
    was the pardon--she was in the Office of Pardon Attorney during
    the Obama Administration. As Caroline said, they wanted to move
    10,000 commutations. There were a couple of problems she faced.
    One is, as they opened up the stream for people to get
    applications in, focused on racial justice and excessive
    sentencing, they didn't have the resources to add staff because
    Congress was blocking efforts to provide more resources. So,
    Congress can play a role here. Second, she didn't have access
    to the White House counsel. So doing--setting up a board where
    you have independent people making recommendations, people
    inside and outside of the criminal justice system, I think that
    could be a real tool to move it for others.
        Ms. Bush. Okay. Let me ask you this one quick question. We
    only have a few seconds. In your testimony, you note that
    racist policies like the war on drugs have disproportionately
    devastated communities of color and that you believe that the
    Presidential Administration should use the clemency power to
    remedy these injustices. Why do you feel that Presidents have
    been really reluctant in this way? Because it also is worth
    noting that--well no, go ahead.
        Ms. Hobert Flynn. No, we have deep problems in our criminal
    justice system that must be addressed. Clemency is only one
    tool for racial justice. We have to be looking at all levels--
    sentencing guidelines. Actually, I don't even think clemency
    should be limited to something that the President can do. It
    should be able to be done in courts, in Federal courts across
    the country. So, what we have so look at is top-to-bottom
    reform.
        Ms. Bush. Thank you. I yield my time.
        Mr. Cohen. Thank you, Ms. Bush.
        Our next Congressman to be recognized is someone who played
    in the NFL so long ago that he never played against Tom Brady,
    Representative Burgess Owens.
        Mr. Owens. That is putting things in perspective. Thank you
    so much for that. Well, first, good morning, everyone, and my
    colleagues, Subcommittee chair, and Ranking Member, this is
    indeed truly an honor to be with you.
        What I am hoping to do is bring to this Committee my long
    passion for criminal justice reform. I have had a mission for
    decades. I started Second Chance Youth working with at-risk
    kids coming out of the juvenile system and giving them a second
    chance.
        I am always pleased when Americans are given that second
    chance. Alice Johnson is a great example of that. A grandmother
    given a life sentence for her first offense. It took 22 years
    before someone heard her voice, and that was President Trump.
    Of course, President Obama for 8 years did not.
        I want to say something that CNN had said about the
    pardons. CNN: The vast majority of pardons and commutations on
    Trump's list were doled out to individuals whose cases have
    been championed by criminal justice reform advocate, including
    people serving lengthy sentences for low-level offenses.
        I think we need to bring on the wisdom of our forefathers,
    and they put a very high bar when this comes down to
    amendments. It needs to pass by two-thirds of the House and
    Senate, and then go to the States. Three-quarters of the State
    legislators have to also pass. There is a reason for why it has
    been done this way. It is purposely put in place not to be
    changed by passions of politics every 4 to 8 years, but by
    reason and time. That's the difference between democracy--
    Democrat--democracy and republic. Our republic has lived for
    200 years because of this reason over time. What has been the
    result of that? There have been over 10,000 attempts to change
    or amend our Constitution. It has only happened 27 times.
        So, we, the people, are the ones that will make this
    happen. It is not done by a stroke of a pen; it will not be
    done by legislators every 4 to 8 years. It is done by, we, the
    people.
        Even though this is very educational, I think these kinds
    of conversations we need to have so that we can understand this
    process and understand our Constitution. I can predict that
    this amendment will not be the 28th.
        So, that being said, I do have a couple of questions.
    Professor Blackman, what are the explicit limits in the
    Constitution that the Founders placed on the pardon power?
        Mr. Blackman. Thank you, Representative. Only two. The
    first is that the President can only pardon Federal offenses;
    he can't pardon State offenses. Second, the President can't
    pardon impeachments.
        Mr. Owens. Okay. During the conventional--Constitution
    Convention, did the Founders consider and object to legislative
    involvement in the President's power--or pardon power? I want
    to clarify that one.
        Mr. Blackman. Yes. There were proposals of having actually
    the Congress involved, that the Congress would have to approve
    of pardons, and those were rejected. Madison and others said
    that we really should put the power of the pardon in a single
    individual to ensure that there is speed and efficiency, and
    you can consider justice.
        As you know, we have a lot of people in the Congress making
    decisions; they don't always agree on things. In this case, a
    unitary executive does make some sense.
        Mr. Owens. Okay. As I mentioned, this is something we go
    through every 4 to 8 years because it has been somewhat
    political. But can you characterize President's Obama pardon of
    Chelsea Manning for something that I remember being a big deal
    for a while? How does that compare with the majority of
    President Trump's pardons?
        Mr. Blackman. Well, I think the Manning pardoning was quite
    controversial precisely because WikiLeaks was involved, and
    there were national security implications. I think I'd make a
    bigger point; I think perhaps people on the one side of the
    aisle have a certain conception of public good, and the people
    on the other side of the aisle have a different conception of
    public good. I don't think there is a single shared conception.
    That is why there is elections. I think President Biden will
    probably look at different people to pardon than President
    Trump did. That is what happens every 4 to 8 years.
        I think your point is well-taken that different people
    think different pardons are controversial for very different
    reasons.
        Mr. Owens. Okay. Thank you very much. I am going to give
    back my time. Thank you so much. I appreciate it.
        Mr. Blackman. Thank you, sir.
        Mr. Cohen. We only have about 10 or 12 more minutes of Mr.
    Naftali. I am going to have a beginning of a second round after
    Ms. Jackson Lee. I would like to use knows 5 minutes, Ms.
    Jackson Lee. You if you will take your 5 minutes, and if you
    have anything to direct to Mr. Naftali on the history of
    pardons, it would be great.
        Ms. Jackson Lee. Let me thank you, Mr. Chair, and the
    ranking Chair for holding this Committee hearing on this very
    important issue.
        It has been stated that the pardon power of the President
    is not, in fact, unlimited, though governed by the
    Constitution. I offer these thoughts as I present my issues in
    the backdrop of January 6th. The unforgivable attack on
    democracy incited by the 46th President, where his loyalists
    laid siege to the Capitol Building, parading the obscenity of
    the symbol of the Confederate battle flag, while seeking to
    disrupt the joint meeting of Congress to count and announce the
    winner of the majority of votes cast by Presidential electors,
    all the while championing, ``Hang Mike Pence,'' culminated a
    reign of corruption, abuse of power, criminal conduct,
    unethical behavior, and malfeasance unseen in America, and that
    weakened our country and made it poor and left it more divided
    than ever.
        As a senior member of this committee, I chose to be on this
    constitutional committee, even as a sit in this last seat
    because I believe it is important for us to coddle, protect,
    nurture, and build the Constitution.
        I am delighted with the witnesses that are here. I want to
    acknowledge my hometown constituent, Josh Blackman, professor
    of law, South Texas College of Law, and as well all of the
    other witnesses, Karen Hobert Flynn, Professor Naftali, and, of
    course, the witness of Professor Frederickson.
        Let me raise this question to Professor Naftali as it
    relates to the history of dealing with the importance of the
    clemency power. I might add to the fact that not only are
    people languishing, I, over the years, offered legislation
    before we had criminal justice reform and sentencing reduction
    to try to address the tens upon tens and hundreds upon hundreds
    of elderly African-American or minority incarcerated persons in
    the Federal system based upon the drug siege of the 70s and
    80s.
        So, Professor, would you give us just a historical comment,
    if you would, on whether or not the President--past President
    authority would even reach to the point if he had reached to
    attempting to give pardon to those who perpetrated criminal
    acts under January 6th? Then would you, as a historian, see any
    parallels between the post-Trump era and the post-Nixon era,
    during which Congress instituted several good government
    reforms aimed at reining in potential abuses? Thank you so much
    for your leadership and scholarship as well.
        Mr. Naftali. Thank you, Congresswoman Jackson Lee. After he
    was acquitted, President acquitted in his then trial, President
    Johnson used the pardon power to pardon Jefferson Davis. It was
    the Christmas pardon of 1868. It is very hard for me to--I get
    emotional talking about Reconstruction in the United States
    because I think we, as a people, and especially people of
    color, but we, as a people, bear a heavy burden because our
    country did not face the truth of the Civil War and then swept
    it under the carpet. I believe the amnesty for Jefferson Davis
    create--helped to create that burden. That was a pardon by a
    President at the end of his term.
        I worried, I have to tell you, in January, that we might
    see some pardons of the insurrectionists.
        I spent today talking about Nixon because--not just because
    I know--think I know Nixon--but we have evidence that is--we
    have a shared body of data. All of you could--I know you are
    busy people, and you should be--but we can actually all listen.
    It is there. We don't yet have, but I want us to have it, a
    shared body of data about the Trump era. We have a lot of
    public information, but there is a lot more to learn.
        I have a feeling that the second impeachment, Ms. Jackson
    Lee, may have actually deterred President Trump from perhaps,
    perhaps pardoning some insurrectionists. I don't have evidence,
    and I don't want to make the claim that he would have, but it
    is a question I will be asking as a historian.
        So, yes, Presidents have had the power to pardon
    insurrectionists. Indeed, as Professor Blackman would certainly
    know--I am mentioning him because he talked about the issue of
    amnesty--the Founders did talk about, perhaps, at times using
    the pardon to calm our political environment by issuing
    amnesties.
        One element of our history that I think really needs to be
    stressed is that our Founders did not think of a partisan era;
    they did not think of in terms of political parties. That is
    one of the reasons we have the 12th amendment because they had
    to correct the electoral system, at least, because they hadn't
    imagined parties. Some of how they conceived of limits on the
    pardon, I think, are less powerful because they didn't assume
    there would be a President's party in Congress. Because they
    hadn't thought in those terms.
        So, that is why I am suggesting structural forums that
    because the pardon is too powerful a tool now for a President
    in a way that the Founders, I don't think, anticipated because
    of the change in the balance of power brought about in a
    partisan age.
        One more thing I would mention. This is a little outside of
    my lane, but since you have asked the question about the
    reforms or two, I believe that when--that the issue of a pardon
    is not just the issue for the White House, that that power
    resides in the President as our Head of State. Therefore,
    Congress does have a role, perhaps, in expanding knowledge of
    the pardon to those that could benefit from petitions. The
    issue is not simply that the petitions get read by the people
    in the Justice Department and then fed to the White House
    through some system. It is also that that the people in the
    country who are incarcerated, who are deserving of mercy, know
    how to communicate their story to Washington.
        In the case of Donald Trump's era, at the very least, Kim
    Kardashian was able to provide some of those stories to the man
    with the pen. That is a very idiosyncratic way for people who
    have suffered from unfair incarceration to get their stories
    before our Chief Executive.
        So, as we think about limits on the President's misuse of
    the pardon, we should think of ways to broaden the public's
    access to that executive clemency.
        Mr. Cohen. Thank you, Ms. Jackson Lee, for asking the
    professor. I would like to follow up with the professor.
        In your study of the history of impeachment and/or pardons,
    are you familiar with any secret pardons ever being revealed?
        Mr. Naftali. No. I am not. In fact, when that issue arose
    during the last weeks of the Trump Administration, I was
    learning something.
        I want to make one other thing clear. I am worried about
    the nature of the climate of power. This is not, not an
    artificial concept.
        Professor Blackman, with whom I agree on a number of
    points--but Professor Blackman talked about dealing with the
    problem of the power after the fact. I am not sure that the
    history of the misuse of the pardon suggests that that is
    enough because part of the problem is if the President and his,
    and someday her, inner circle believe they can get away with
    it, that has an effect on our judicial and congressional system
    at that time. If people know that they will be protected, they
    might not be truthful with Congress, they might not be truthful
    with the FBI, or with the grand jury because of this notion
    that the climate is permissive.
        I think we have had that permissive climate in a number of
    Presidencies. I have documented--and you can learn yourselves
    about Nixon--and we are now having a debate over the extent to
    which it was a permissive climate in the Trump Administration.
    There was certainly at least a permissive climate in the
    Clinton Administration the last day of his second term. That
    permissive climate is a threat to our constitutional system and
    to the balance of power that the Founders believed in.
        I really encourage Congress to be robust in defending its
    prerogative, in defending the importance of checks and
    balances. I think the pardon power has gotten out of whack.
        Mr. Cohen. Let me ask you this, President Obama, who issued
    either 1,700 or 1,900, I think it was 1,700-something pardons,
    he had a system set up at Justice that was rather stringent. I
    think you had to serve at least 10 years of your sentence,
    which why 9 years of your sentence should not have made some
    drug, nonviolent, victimless drug crime one that shouldn't be
    pardoned because you had served 9 and not 10 years. Has any
    other President that you are aware of set up a system like that
    of hoops to go through, a criterion, and done it in a totally
    objective manner where they didn't know the person?
        Mr. Naftali. I really don't know the nuts and bolts history
    of the approach to the pardon attorney. I know that, for many
    Presidencies, I know in the case of Nixon, ironically, a year
    before Watergate, the White House was trying to create a better
    system for pardons. Not every Nixon pardon, by the way, was
    suspect. But the permissive climate is problematic in that it
    undermined, I believe, our judicial and congressional systems.
        Presidents have tried to routinize this approach. Let's
    keep in mind that the Office of the Pardon Attorney, we have
    had, as a people, for a long time. It was, I believed, created
    in the late 19th century.
        So, yes, I think the issue, Mr. Chair, is when Presidents
    go outside of the system--and it is, how often do they do that?
    When they stay within the system, when they let the experts at
    DOJ, the civil servants provide them with data and
    recommendations--and the Attorney General, of course, plays the
    role--that is one thing. When they go outside the system--and
    we have examples of Presidents doing that--I would argue, the
    evidence seems clear now at least--that President Trump went
    outside of the system more than his predecessors. Whenever they
    go outside the system, usually, not always, but usually it
    produces a controversial pardon. That was the case with
    President Clinton, with President Nixon's contemplated pardons,
    his dangling of the pardons, with President George H.W. Bush.
        So, how do you keep the President within the system? That
    is really the President's prerogative. There are ways I think
    to complicate the creation of a permissive environment for bad
    pardons.
        Mr. Cohen. Your Atlantic article, which I thought was
    brilliant, had several suggestions, one of which was the timing
    and not doing a pardon before the end of the election. Did you
    consider a President in his first term as different from his
    second term, did you consider having to give notice before, say
    if election day is a limitation, say maybe 10 days before
    election day, and having notice to make sure it is not a secret
    pardon? What are the other reforms you suggested in your
    article that we should consider?
        Mr. Naftali. Mr. Cohen, well, thank you, for asking me. I
    really believe in deterrence because I think we are all
    imperfect beings. Okay? Even the best of us faces temptation.
        So, I think that one of the great deterrents is public
    sanction. In other words, the public responding to what you
    have done. That is why, by the way, a secret pardon concerns me
    because then the public, by definition, doesn't know about it.
        That is why I want Presidents not to fear--I like
    Presidents to know that the public has a chance to give a
    verdict on their pardons. So, that is why I very much like
    former Congressman Frank's idea that you set a structural sort
    of deadline for the use of the pardon, and you do it before an
    election. So, they can't do it after the public has a chance to
    respond. The reason you would do it in October is the public
    has to know about these things. Now, if you can figure out a
    way to require disclosure, you could do it in late October
    other than October 1st. I think that is a good idea.
        The second thing is, although, the self-pardon, there are
    lots of good arguments why it shouldn't be constitutional. I
    would leave it to the lawyers. In the Nixon period, they looked
    at this, and they decided that, A, it probably wasn't, and, B,
    it had to do with what the Supreme Court would do. The Supreme
    Court sent a message in U.S. v. Nixon that even the appointees
    of the President can vote against the President.
        So, I really believe that sanction should be included, that
    you should not have self-pardons.
        Finally, I worry about the President's ability, under
    partisan temptation, to pardon those who are political
    associates. I think that should be looked at hard--a
    prohibition should be looked at hard as well regarding that.
        Mr. Cohen. Thank you, Professor. I know you have a hard
    cut. I just have one last question, and I am going to finish my
    overtime. That is to Ms. Fredrickson and/or to Ms. Hobert
    Flynn.
        First, Ms. Fredrickson. The proposals Mr. Schiff has in his
    bill, Congressman Owens is right. The likelihood of my statute,
    my amendment to the Constitution, it is the degree of
    difficulty is great, a statute is not.
        Are there any problems you have with the proposals that Mr.
    Schiff has in his bill? Are there things you think that should
    be in there that could pass constitutional muster and put
    limits, such as Professor Naftali and others have discussed?
        Ms. Fredrickson. Well, thank you very much. To Professor
    Naftali, I really have enjoyed hearing you speak. I am always a
    fan of historians, being a daughter of a historian. It is a
    very important part of this conversation.
        I think that Congressman Schiff's bill puts out some very
    important reforms, as I had mentioned, which have to do with
    transparency in showing that there is broader dissemination of
    information about the pardons, as well as the prosecution that
    would be pardoned.
        Also, again, the clarification of the bribery statute,
    which, I think, it is widely held that would already apply to
    the President, but just to ensure that there is no question
    about that. Beyond that, I think certainly Congress should be
    considering some of these reforms. They may impose greater
    challenges in terms of getting closer to the confines of the
    article II authority that the President has as circumscribing
    the grant of pardons in a way that doesn't constitute a
    prosecution for a criminal offense, which has already seen to
    be allowable. Actually, telling the President when she cannot
    pardon somebody, it is worth considering. It maybe a little bit
    more challenging in terms of the constitutional limitations.
        Mr. Cohen. So, on the idea of the secret pardon and trying
    to prohibit them by requiring some notice to be given, some
    public disclosure, do you think that could be statutorily, or
    is the power in the Constitution so broad that it couldn't be
    done?
        Ms. Fredrickson. Well, again, there it is a gray area. It
    would certainly be worthwhile for Congress to move forward on
    the transparency issues, the transparency provisions that are
    included in Congressman Schiff's bill and then Mr.
    Krishnamoorthi's bill, but also to look at the timing issues.
    It certainly sets out a very important point of Congress' role
    in understanding the Constitution, which Professor Blackman
    rightly says Congress plays a very important role in the
    interpretive process and sends a strong message.
        So, there is a possible constitutional challenge; I
    wouldn't endorse, but I certainly would be--as something that
    would occurs. It would still merit going forward in pursuing
    such reforms because I think they might certainly stimulate an
    Administration to try and adhere to them. If an Administration
    did not, it would provoke its own political backlash.
        Mr. Cohen. Thank you, Ms. Fredrickson. I have gone over
    time and taken that opportunity to ask each of you and Mr.
    Naftali questions.
        Does Mr. Johnson or anybody else on the Committee desire
    any additional time, or should we close this hearing up?
        Mr. Johnson of Louisiana. I will take it if it is offered,
    Mr. Chair. Just another 5 minutes or less.
        Mr. Cohen. Or less, thank you.
        Mr. Johnson of Louisiana. Just quickly, there has been a
    lot said. I actually think it was a productive discussion
    today, and I appreciate that and the tone that everybody
    brought to the discussion. It is important.
        As we have acknowledged, there have been people politically
    aggrieved on either side of this depending on who the
    President's been.
        I do want to just point out some things have been said
    about President Trump this morning. He has been accused of not
    only, in one sense, going outside the system, as it was said a
    few moments ago to egregious violations of the pardon power.
        I just wanted to ask Professor Blackman just to kind of put
    a bow on all of this: I mentioned in my opening that President
    Trump granted nearly 240 pardons in commutations. We have heard
    a lot this morning about how he abused the pardon power, but
    according to the Pew Research Center, President Trump used,
    quote ``power less frequently than nearly every other President
    since the turn of the 20th century.''
        Professor Blackman, I just wanted to ask you, would you
    agree that the grants of clemency and pardon and all that that
    President Trump used was done by him, at least from his
    subjective viewpoint, in a way to rectify unfair sentences and
    prosecutions?
        Mr. Blackman. I think so. Maybe I will focus on one in
    particular, Jack Jackson, who was a very famous boxer from the
    early 20th century, an African-American boxer. He was charged
    with violating the Mann Act. Which if you don't know what the
    Mann Act is, it is basically this very nebulous law that
    prohibited transporting a woman across State lines for immoral
    purposes. He had a mistress who happened to be White, and he
    was charged with basically having a relationship with a White
    woman. He was sentenced to time in prison. This was almost a
    hundred years ago, and this was a pardon that probably should
    have come some time ago. I think it was one of the more
    commendable pardons that President Trump issued. I think it has
    worked well--
        Mr. Johnson of Louisiana. Thanks for mentioning that. I
    point out that he was--my son is named Jack Jackson. We take a
    lot of pride in this.
        Mr. Blackman. Wow.
        Mr. Johnson of Louisiana. Jack Johnson, the boxer, was
    convicted by an all-White jury for that crime, that you said.
    Of course, civil rights groups and advocates petitioned past
    Presidents many times to officially recognize that his
    prosecution and conviction embodied racial hostility and
    intolerance. It took until the time of President Trump to
    correct that historical injustice.
        So, it was mentioned Alice Johnson, another for a drug-
    related offense.
        The point is that, I guess, what I want to conclude here at
    the end, Mr. Chair, is to make the point, for history, for the
    historians, the lawyers, and all of us who are involved in
    this, that there have been controversial pardons by almost
    every President, but there also have been some very noble
    things that have been done before. President Trump certainly
    did the latter. I wanted to note that for the record.
        So, I know we are over our time, and I will yield back, Mr.
    Chair. I appreciate again the tone and the content of the
    discussion this morning.
        Ms. Jackson Lee. Mr. Chair, I would like to comment. I
    think I had my hand up.
        Mr. Cohen. Sure, Ms. Jackson Lee. You are recognized.
        Ms. Jackson Lee. Well, thank you so very much, Mr. Chair.
    Very important hearing, and I will be brief on my comments.
        Professor Naftali, thank you for giving us not only food
    for thought but a structural roadmap along with the legislation
    that we are now looking to assess.
        I gave those opening remarks specifically because, as you
    well know, that was the height of the discussion and intense
    discussion as to whether the President would in actuality
    pardon those domestic terrorists or insurrectionists, and it
    was a frightening possibility.
        I also want to say that I have lived for a long time on
    this Committee with the teeming numbers of individuals in the
    Federal prison system who are predominantly African American or
    people of color, visited some of them, had people and families
    petition and beg for some relief. It is a painful experience to
    see your neighbors incarcerated under these mandatory minimums
    and could not be released or access to.
        So, you gave an interesting point about structuring--the
    structure of it and the potential of Congress and also
    information. Thank you for that.
        I wanted to conclude my remarks by saying that this is an
    important agenda, and reform is important. The Constitution is
    prescient. It is a prescient document. Thank you for your
    historical perspective.
        I think that we should continue to recognize that this
    document has lasted for a period of time that pushes us to
    protect it prospectively and to be serious about protecting it.
    So, I look forward to, Mr. Chair, on this.
        Finally, let me offer my deepest sympathy to my late
    colleague, Congressman Wright, Congressman from Texas, for
    obviously this tragic loss, his tragic loss, and to say that I
    know that he was dedicated to the service of this Nation, and I
    know that his constituents and the Nation is grateful for his
    dedication.
        Thank you, Mr. Chair, and I yield back.
        Mr. Cohen. Thank you, Ms. Jackson Lee.
        I believe Mr. Hank Johnson has asked for a few minutes. He
    is the only person who has. With the permission of the
    Committee and indulgence, we will recognize Mr. Johnson for a
    last round of questioning.
        Mr. Johnson of Georgia. Thank you, Mr. Chair.
        Professor Blackman, it would be fair to say that President
    Trump was rather stingy in his use of the pardon power compared
    to President Obama. Is that correct?
        Mr. Blackman. I think he issued few of them. Absolutely.
        Mr. Johnson of Georgia. Yes. In fact, Trump pardoned 143
    and commuted 94 sentences. Obama, in his 8 years, pardoned 212
    and commuted 1,715 sentences.
        Would it be fair to say that President Trump (sic)
    commuting sentences showed more mercy than President Trump, who
    just simply let a bunch of folks off the hook? Particularly in
    the wee hours of the morning on the night of January 19th, he
    issued--of his 237 total pardons and commutations, Trump
    commuted or pardoned more than 140 people in the wee hours of
    the morning, just 10 hours before his term ended, including
    Steve Bannon, a potential witness against him who was under
    indictment for defrauding Trump supporters in a Build the Wall
    scheme.
        Professor Blackman, would it be fair to say that it is best
    for Presidents to depend on the Office of the Pardon Attorney
    rather than simply dispensing pardons and commutations out of
    their back pocket like President Trump did?
        Mr. Blackman. Well, I thank you for the question,
    Representative.
        The Constitution gives the President this power. The pardon
    attorney can make recommendations. I actually agree with Ms.
    Fredrickson. It may make sense to have people who aren't in the
    DOJ making these recommendations because very often DOJ is
    supporting the prosecutions. I think having somebody--
        Mr. Johnson of Georgia. Well, how many times did President
    Trump rely upon the Office of Pardon Attorney before making any
    of his 237 commutations?
        Mr. Blackman. I don't know, but I guess the number is
    pretty small.
        Mr. Johnson of Georgia. How many did President Obama do
    under the Office of the Pardon Attorney?
        Mr. Blackman. I don't know the number. I am guessing it is
    a bigger number.
        Mr. Johnson of Georgia. Yeah. I think it was a total of
    1,927, and he relied on the Office of the Pardon Attorney.
        Professor Fredrickson, what is the better practice in terms
    of use of the pardon power, and how can we best protect our
    democracy from being undermined by the illicit use of the
    pardon power as we saw happen under the Trump Administration?
        Ms. Fredrickson. Well, I would like to first thank you for
    that question. It is a very important one. I would like to
    associate myself with the remarks of my colleague, Karen Hobert
    Flynn, who talked about the need really to have a wholesale
    reform of our criminal justice system and its disparate impact,
    particularly on Black and Brown people.
        The pardon power is one element of that, but it is not
    sufficient, clearly, in the commutation. Having a system inside
    the Justice Department, or I think a better practice, as Ms.
    Hobert Flynn also suggested, is perhaps a kind of a board that
    was made up of people who weren't all prosecutors who would be
    considering the real injustice that has been done and whose
    sentences can be commuted or who can be pardoned through the
    President's pardon power.
        That, I think, is very insufficient because there are so
    many people who are prosecuted for low-level drug offenses, who
    are already in prison for excess of time that we--unlikely to
    address all those people through the pardon attorney process or
    through any kind of a commutation and pardon board.
        Nonetheless, though, I think it is very important to have a
    system that does allow the most significant cases to move
    forward and be put in front of such a board or in front of the
    pardon attorney for expedited process.
        Mr. Johnson of Georgia. Thank you.
        Thank you, Mr. Chair. I yield back.
        Mr. Cohen. You are welcome, Mr. Johnson.
        I have been told by staff that Ms. Bush might have a
    question. Is that correct? Representative Bush? Representative
    Bush, going once, going twice.
        This adjourns--this concludes our hearing. I want to thank
    all our witnesses for appearing today.
        Without objection, all Members will have 5 legislative days
    to submit additional written questions for the witness or
    additional materials to the record.
        I would like to specifically ask the witnesses, if you have
    thoughts about legislation, either the amendment to the
    Constitution, or as Representative Owens has cautioned, more
    likely statutory changes and suggest them in your comments to
    the chair because we are going to try to draft something that
    is feasible, passable, and improving things.
        So, if you have suggestions that we can do for amendments
    to Mr. Schiff's statutory, that would be appreciated greatly.
    With that being said, I am done.
        In memory of Representative Wright, Congressman Wright,
    this hearing is adjourned.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair.
        [Whereupon, at 11:20 a.m., the Subcommittee was adjourned.]

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