[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                     
          
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                      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 [email protected], 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:]
    
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    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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