[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
EXAMINATION OF CLEMENCY AT THE DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME AND FEDERAL GOVERNMENT SURVEILLANCE
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, JUNE 22, 2023
__________
Serial No. 118-29
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
52-866 WASHINGTON : 2023
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
KEN BUCK, Colorado Member
MATT GAETZ, Florida ZOE LOFGREN, California
MIKE JOHNSON, Louisiana SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
TOM McCLINTOCK, California HENRY C. ``HANK'' JOHNSON, Jr.,
TOM TIFFANY, Wisconsin Georgia
THOMAS MASSIE, Kentucky ADAM SCHIFF, California
CHIP ROY, Texas ERIC SWALWELL, California
DAN BISHOP, North Carolina TED LIEU, California
VICTORIA SPARTZ, Indiana PRAMILA JAYAPAL, Washington
SCOTT FITZGERALD, Wisconsin J. LUIS CORREA, California
CLIFF BENTZ, Oregon MARY GAY SCANLON, Pennsylvania
BEN CLINE, Virginia JOE NEGUSE, Colorado
LANCE GOODEN, Texas LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama DEBORAH ROSS, North Carolina
KEVIN KILEY, California CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming GLENN IVEY, Maryland
NATHANIEL MORAN, Texas BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
------
SUBCOMMITTEE ON CRIME AND FEDERAL
GOVERNMENT SURVEILLANCE
ANDY BIGGS, Arizona, Chair
MATT GAETZ, Florida, SHEILA JACKSON LEE, Texas, Ranking
TOM TIFFANY, Wisconsin Member
TROY NEHLS, Texas LUCY McBATH, Georgia
BARRY MOORE, Alabama MADELEINE DEAN, Pennsylvania
KEVIN KILEY, California CORI BUSH, Missouri
LAUREL LEE, Florida STEVE COHEN, Tennessee
RUSSELL FRY, South Carolina HENRY C. ``HANK'' JOHNSON, Jr.,
Georgia
CHRISTOPHER HIXON, Majority Staff Director
AMY RUTKIN, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Thursday, June 22, 2023
Page
OPENING STATEMENTS
The Honorable Andy Biggs, Chair of the Subcommittee on Crime and
Federal Government Surveillance from the State of Arizona...... 1
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 3
The Honorable Sheila Jackson Lee, Ranking Member of the
Subcommittee on Crime and Federal Government Surveillance from
the State of Texas............................................. 4
WITNESSES
Doug Berman, Newton D. Baker & Hostetler Chair in Law, Michael E.
Moritz College of Law
Oral Testimony................................................. 7
Prepared Testimony............................................. 10
Mark Osler, Robert and Marion Short Distinguished Professor of
Law, University of St. Thomas
Oral Testimony................................................. 14
Prepared Testimony............................................. 16
Brett Tolman, Executive Director, Right on Crime
Oral Testimony................................................. 26
Prepared Testimony............................................. 28
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on
Crime and Federal Government Surveillance are listed below..... 48
Materials submitted by the Honorable Sheila Jackson Lee, Ranking
Member of the Subcommittee on Crime and Federal Government
Surveillance from the State of Texas, for the record
An Executive Grant of Clemency for Philip Esformes
A Memorandum to the Former President Donald Trump for a
Clemency Request for Philip Esformes
APPENDIX
A statement submitted by the Honorable Sheila Jackson Lee,
Ranking Member of the Subcommittee on Crime and Federal
Government Surveillance from the State of Texas, for the record
EXAMINATION OF CLEMENCY AT THE DEPARTMENT OF JUSTICE
----------
Thursday, June 22, 2023
House of Representatives
Subcommittee on Crime and Federal Government Surveillance
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 2:31 p.m., in
Room 2141, Rayburn House Office Building, Hon. Andy Biggs
[Chair of the Subcommittee] presiding.
Members present: Representatives Biggs, Jordan, Moore,
Kiley, Fry, Jackson Lee, Cohen, and Johnson of Georgia.
Mr. Biggs. This Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time. We welcome everyone to today's hearing on clemency and
the Department of Justice. I will recognize myself now for an
opening statement, and I thank our witnesses for joining us
today.
We've got a great panel of witnesses across the spectrum so
I'm grateful for you being here. The business before us is a
hearing titled, ``Examination of Clemency at the Department of
Justice.''
This hearing examines, among other things, the Department
of Justice's re-prosecution of someone whose prison sentence
was originally commuted by President Donald Trump. This
unprecedented prosecution is just the latest in the pattern of
repeated systemic corruption by this Administration's
Department of Justice. Why? Because this individual had
received his pardon, actually commutation, by President Trump,
former White supremist and chief as one of my colleagues on
this Judiciary Committee said just yesterday when defending the
lies of our now censured Democratic colleague, but they loathe
the former President. They loathe his official actions. They
loathe his treaties and his policies and his supporters. It's
no longer a question.
There is an old football saying attributed to legendary
Coach John Madden, if you have two quarterbacks, you have none.
Our two-tiered justice system is such that in my mind we don't
have justice because if somebody is being treated differently
than someone else, you simply don't have justice. Lady Justice
is supposed to be blindfolded.
The Department of Justice has the responsibility of
ensuring the equal application of law and justice for all and
yet it has failed us. It has failed you, the American people,
who depend on these standards every day.
Under the leadership of Merrick Garland, the Attorney
General, the Department of Justice has weaponized its power in
unprecedented ways with new examples seemingly uncovered every
week.
In recent times, we've seen President Trump indicted for
conduct also committed by Secretary of State Hillary Clinton
and Senator Joe Biden. We have heard reports that prosecutors
have quotas for the number of January 6th related cases they
must bring. We have seen Catholic worshipers targeted in
churches, and concerned parents targeted by this DOJ at school
board meetings. Just yesterday, Special Counsel John Durham
testified about his report that found systemic problems within
DOJ and FBI, which were weaponized by individuals with
political bias against President Trump.
In his report, Durham called the treatment of Democrat
Clinton and Republican Trump ``markedly'' different from each
other. We saw Hunter Biden escape meaningfully judgment from
crimes he admitted. Just this morning, the Ways and Means Chair
Jason Smith released a report detailing disparate treatment. I
thought prosecuting an individual who breaks the law,
especially the crime as serious as possessing a firearm, was
something we could all agree on but apparently not.
So, just this morning, as we looked down again at the Ways
and Means Committee, they brought forth allegations from
whistleblowers that the DOJ, FBI, and IRS were told to stand
down on Hunter Biden's investigations.
These whistleblowers were stonewalled and retaliated
against after recommending prosecution for what they believe
were crimes supported by thousands of pages of evidence. We do
care about justice, about law and order, and about standards
and accountability, and we need to get it. Americans are tired
of multiple standards.
Just yesterday, our friend, Mr. Lieu from California,
reminded us that the House Judiciary Committee is responsible
for helping to ensure the rule of law. That brings us to the
case of Mr. Esformes.
In 2016, Philip Esformes was convicted on 20 criminal
counts related to healthcare fraud, money laundering, and
bribery, 20 counts. On six counts, the jury failed to reach a
verdict. Yet, the sentencing judge in his sentencing statement
factored these hung jury counts into the sentence.
The prosecutors in the case also committed gross
prosecutorial misconduct by receiving materials protected by
his former attorney's client privilege. That was the way it was
found by the judge, yet they were allowed to remain on the
case.
As a result of the injustice, President Trump commuted
Esformes' prison sentence in 2020. However, only a few months
into, or excuse me, a few months later, Biden's DOJ announced
that it would seek to re-prosecute Esformes on the hung counts.
The Biden DOJ's re-prosecution of Esformes is objectively
political, and it is unprecedented. This isn't justice. This is
injustice. It is a very unprecedented and chilling decision.
Anyone who ever received a grant of clemency from any
President should be extremely concerned. Presidents grant
clemency to avoid injustice for exceptional cases. Mr.
Esformes' case is exceptional. Now, President Biden thinks he
knows better than Trump, but he doesn't. He is setting a
dangerous precedent that any Administration going forward can
re-prosecute those granted any form of clemency by past
Administrations.
Where does it end with this DOJ and with this
Administration? It is painfully clear that we are dealing in a
two-tiered or, in my opinion, a system of injustice rather than
justice.
I again thank our witnesses for coming here today. I look
forward to hearing you on how we can hold this DOJ accountable
and identify legislative solutions to move us closer to the
promise of equal justice for all. Thank you. I yield back. I
now recognize the Ranking Member of the Full Committee, Mr.
Nadler, for his opening statement.
Mr. Nadler. Thank you, Mr. Chair. First, let me say I have
no idea what the Durham Committee has to do with the subject of
this hearing, but never mind that.
Mr. Chair, Republicans have called this hearing to call
attention to the case of Philip Esformes, who was convicted on
20 charges flowing from the largest healthcare fraud scheme
ever investigated by the Department of Justice. Under this
scheme, sick, elderly patients were moved from one facility to
another to maximize billable services.
Some patients received unnecessary treatments while others
testified that they faced poor conditions, conditions that were
easier to cover up as Mr. Esformes bribed the State nursing
home regulator.
After a week's long trial, a jury found Mr. Esformes guilty
no 20 counts and deadlocked on six counts. He was sentenced to
20 years in prison, required to pay $5\1/2\ million in
restitution and forced to forfeit $38.7 million obtained from
the scheme until he got the attention of President Trump.
In the final months of the Trump Administration, Mr.
Esformes' legal team used their connections to reach out to the
highest levels of the White House. On December 22, 2020, with
days left in his Presidency, Trump commuted Mr. Esformes'
sentence. Notably, the commutation left in place the
restitution, the forfeiture judgment, and three years of
supervised release. The commutation did not affect the six
counts for which the jury deadlocked, counts that Trump could
have pardoned but didn't, leaving the door open for prosecutors
to retry Mr. Esformes as they are now seeking to do.
Republicans State that this case illustrates that we have a
two-tiered system of justice. Far too often that is right. The
tiers are not based on political views. While Republicans
imagine that White, wealth conservative men are the victims of
these disparities, Democrats know that it is actually poor
people and people of color who find the decks stacked against
them. Whether you spend the night in jail doesn't turn on who
you voted for, but it might very well turn on whether you have
a lawyer in speed dial or enough money to post bail.
Clemency should act as a corrective to adjust the system
that is not always just. In Federalist 74, Hamilton described
Presidential pardons as an ``act of mercy'' that balances the
justice system that might otherwise be too cruel. It can just
as easily perpetuate injustice, becoming yet another way to
divide those who can afford to access it from those who can't.
In the vast majority of cases, President Trump bypassed the
clemency procedures followed by his predecessors, both
Republican and Democrat, bypassing the pardon attorney whose
function it is to examine the 20,000 or so pardon applications
received each year and creating a situation that favors his
political friends who are well-connected and those with the
money to buy their way out.
So, it is not surprising that someone like Mr. Esformes was
able to reach the President's desk. For every case like his,
there are hundreds if not thousands more people in our Federal
prisons who cannot afford a whole team of lawyers to pursue
clemency and who were not able to persuade a Member of Congress
to hold a hearing on their case.
In the last Congress, Democrats held a hearing about those
individuals, and they still need our attention. We heard from
Mr. Osler and others about ways in which the clemency process
can be improved, and I look forward to discussing that again
today.
At the last Congress, we also addressed the problem of
enhanced sentences for acquitted conduct, which parallels the
legal problem presented by the counts on which jury was hung in
Esformes' case, for which his sentence was enhanced.
We passed the Bipartisan Prohibiting Punishment of
Acquitted Conduct Act, sponsored by Cohen, by Congressman
Cohen, which would ensure that prison sentences reflect only
the crimes for which a person is convicted beyond a reasonable
doubt as the Constitution requires. Unfortunately, this bill
was never taken up by the Senate, but we can and should work
together again to address this injustice in a bipartisan
fashion.
The majority has called this hearing to talk about a case
that Trump could have ended, a case that is still working its
way through the courts, and a case that has no congressional
remedy. Instead of focusing on one case, we should discuss what
we can do to improve sentencing, clemency, and other aspects of
our justice system for the many thousands of others who do not
have the money and connections that Mr. Esformes has.
I hope our experts will help us explore these important
subjects and shed light on how we can work together on
meaningful reforms. I yield back.
Mr. Biggs. The gentleman yields back. I now recognize the
Ranking Member, Ms. Jackson Lee, for an opening statement.
Ms. Jackson Lee. Thank you, Mr. Chair, for your courtesies.
Thank you to the Ranking Member and other Members who are here
on the Subcommittee on Crime and Federal Government
Surveillance and this hearing of examination of clemency at the
Department of Justice.
Today, we are here to discuss the commutation of Philip
Esformes, an individual who, according to a press statement
released by the Department of Justice under the former
President, led to one of the largest healthcare fraud schemes
in history.
The case was investigated by the FBI and HHS, Office of
Inspector General and was brought as part of the Medicare Fraud
Strike Force by the U.S. Attorney's Office for the Southern
District of Florida with assistance from the Florida Attorney
General's Office Medicaid Fraud Control Unit.
One agent in the FBI's Miami Field Office once described
him as a man driven by almost unbounded greed. For nearly two
decades, Mr. Esformes bankrolled his lavish lifestyle with
taxpayer dollars paying bribes to doctors, regulators, and
inspectors and stealing Medicare and Medicaid funds by billing
for services that people either did not need or did not
receive.
These fraudulent healthcare claims, which robbed American
taxpayers of more than $1 billion, were finally uncovered after
a lengthy investigation and led to a 35 counts indictment that
named him and his two coconspirators. After a jury found him
guilty of 20 counts of bribery, illegal kickbacks, obstruction,
and money laundering, he was sentenced to 240 months
imprisonment, ordered to pay $5.5 million, and a forfeiture of
nearly $40 million was entered.
However, just over a year later, he received a commutation
which freed him from prison immediately, but left the other
aspects of his sentence intact, including a three-year term of
supervised release. Unfortunately for him, no one thought about
the six outstanding counts that the jury was unable to reach a
verdict on. Apparently, the prosecutors in the Southern
District of Florida do not believe that justice was served, and
they have made it clear that he will be retried on the
outstanding counts.
So, today, the majority is holding a hearing purportedly
about clemency, but just last Congress we convened a hearing to
discuss the backlog of thousands of clemency petitions, mostly
for commutations languishing somewhere in the clemency process,
representing thousands of people in the Federal prisons across
the country, waiting often with false hope to hear something
from the Office of Pardon Attorney.
I will take just a moment to say that is the crux of our
problem. Thousands of backlog cases, people who are credible
and qualified, meet the eligibility standards, and there they
are languishing.
For just a few minutes, I was on the phone with those who
advocate for people trying to fairly access this process. You
can't have a process and then have it ignored as it relates to
those thousands that are in line, those thousands of families.
This is a different question.
So, during that hearing, the Republicans expressed
skepticism about the need to reform the clemency process or for
the President to utilize his power of clemency more frequently.
It looks like we need that.
I recall the Republican witness, Mike Hurst, the former
U.S. Attorney for the Southern District of Mississippi under
the previous Administration, said during the hearing that,
. . . asking the prosecutor's opinion of a petition is not
only appropriate, but it is vitally important as no one knows
these defendants and the circumstances surrounding their cases
better than the prosecutor.
That did not happen in this gentleman's case.
There were at least 10 attorneys from the U.S. Attorney's
Office who worked on the case from the Florida Section Chief,
Assistant Chief, to the trial attorneys, to the forfeiture
division not to mention the countless number of agents and
investigators who scoured mountains of medical and financial
records for enumerable hours. From what we know of this case,
not one of them was consulted about this commutation.
For the last several days, we have heard about a two-tiered
system of justice from the Republicans. This hearing and his
case are indeed evidence of an unbalanced system of justice,
one that exists only for the wealthy and well-connected. The
two-tier system of justice has operated for centuries in
America in small towns and big cities and Congress and in the
White House, and it is not drawn along party lines.
I and my Democratic counterparts in Congress and those who
came me have decried a two-tiered system of justice since the
founding of this country. Just days after we celebrate, no
commemorate the day in which enslaved finally found out that
they had been freed two years prior, we are here to discuss the
so-called miscarriage of justice suffered by an individual
whose access delivered him from a prison cell within just over
a month again while thousands languished. Dr. Kirbyjon
Caldwell, Reverend, languishing, having paid off all the people
that he offended as alleged.
I am aware of the criticism of the clemency process as it
exists today. As we discussed during our hearing last Congress,
the process is flawed and cumbersome and in need of reform. I
expect some of our witnesses today might have suggested it was
those well-known issues with the clemency process that led the
former President to sidestep the pardon attorney and other DOJ
components to rely on an ad hoc system developed by Mr. Kushner
and others and predicated on access. This ad hoc system was a
gift and a curse.
I believe it was Mr. Tiffany, who during the last hearing
on clemency posed this question of Rachel Barkow, who proposed
the creation of a Clemency Advisory Board. Are we setting a
parallel bureaucracy that ends up just being a problem? In the
case of this gentleman, the answer is yes. He could have been
shielded from any further prosecution by a pardon.
Unfortunately, he was not. He received a commutation, which we
all know by definition only reduces the sentence and does not
impact a conviction.
He is now facing retrial because there are those who
believe the commutation sends the wrong message about the
seriousness of healthcare fraud and undermines our system of
justice. That is a prerogative of the prosecution. Whether or
not the actions taken by the Southern District of Florida set a
bad precedent remains to be seen. I'm sure that practitioners
will take a note and ready themselves for such circumstances in
preparing their clemency petition in the future.
It is my hope today, Mr. Chair, that our discussion extends
beyond the commutation of this gentleman to the consideration
of the outstanding counts of which he was not convicted to
justify the 240 month sentence.
In the last Congress, we passed a prohibiting punishment of
acquitted conducted sponsored by Ranking Member Cohen with an
overwhelming bipartisan vote. Let us do so again and make sure
that it reaches the President's desk this time. No person
should be subject, especially prison, for conduct of which they
have not been convicted either by a jury or a knowing plea of
guilty.
If Republicans really want to address disparate treatment,
I am here before you. In a two-tier system of justice, they
will join us getting the Equal Act to the President's desk. Let
us finally eliminate the crack to powder cocaine, sentencing
disparity that has been responsible for decades of
unnecessarily long prison sentences for all people, including
Black and Brown people, and let us work together on a storage
bill that should have bipartisan support. I look forward to a
robust discussion with our witnesses. Thank you for your
indulgence, Mr. Chairm, and I yield back.
Mr. Biggs. Thank you, Ms. Jackson Lee. I just want to make
one correction or clarification. Mr. Esformes actually spent
4\1/2\ years in prison.
Ms. Jackson Lee. OK. Thank you so very much.
Mr. Biggs. Yes, thank you.
Ms. Jackson Lee. Maybe I missed that in my statement. Thank
you.
Mr. Biggs. Thank you. Now, I am going to introduce our
witnesses. Before we do that, I think I want to ask you all to
stand up so we can administer the oath of office. So, if you
would stand up, please. Not the oath of office, but the
swearing in. Yes. OK. Here we go.
If you would each raise your right hand? Do you swear or
affirm under penalty of perjury that the testimony you are
about to give is true and correct to the best of your
knowledge, information, and belief so help you God?
Let the record reflect the witnesses have answered in the
affirmative. You may be seated.
Our witnesses are Professor Berman, Douglas Berman, who is
the Newton D. Baker and Baker & Hostetler Chair in Law and
Executive Director of the Drug Enforcement and Policy Center at
the Ohio State University Moritz College of Law.
His principle teaching and research focus is in the area of
criminal law and criminal sentencing. Thank you, Professor
Berman.
We have Professor Mark Osler, who has been here before this
Committee before, maybe last year on the bill we are talking
about. Professor Osler is the Robert and Marion Short
Distinguished Chair in Law at the University of St. Thomas
School of Law. His work focuses on criminal law and procedure,
the death penalty, Federal commutations, clemency, and prisoner
rights. Thank you for joining us, Professor.
We also have Mr. Brett Tolman. Mr. Tolman is the Executive
Director of Right on Crime and a founder of the Tolman Group.
Right on Crime supports conservative solutions for reducing
crime, restoring victims, reforming offenders, and lowering
taxpayer costs. Mr. Tolman is a former U.S. Attorney District
of Utah. We appreciate all of you being here today.
Please know that your written testimony will be entered
into the record in its entirety. Accordingly, we ask that you
summarize your testimony in five minutes. With that, we're
going to begin with you, Professor Berman, please.
STATEMENT OF DOUGLAS BERMAN
Mr. Berman. Thank you very much. Thank you for this
invitation to appear. I have spent decades studying the Federal
sentencing system as a law professor at The Ohio State
University and as an editor of the Federal Sentencing Reporter.
My research has led me to long advocate for more robust and
more regular use of clemency authority. Clemency, of course,
has a rich and distinguished history. The framers of our
Constitution robustly championed Executive Clemency power.
Alexander Hamilton, mentioned earlier, stressed the importance
of clemency in the Federalist Papers and yet given that the
framers fought a revolution to break free from British
monarchy, it might seem curious that in Article II, Section 2,
of the Constitution, they granted the President such broad,
maybe even king-like, power to grant reprieves and pardons.
In a recent article from Mr. Osler, here with us today,
explains why it is not that curious why the framers framed the
clemency power this way. As he put it so well in his article,
the theory in creating Presidential powers was tyranny, but
clemency is uniquely ill-suited to the purposes of a tyrant.
After all, tyrants are enabled by imprisoning those who they
hate, not by letting people out of prison. Another way to say
that is that clemency fundamentally serves as a check on the
government's awesome power to punish. In turn, that means that
efforts to limit or undermine clemency authority only works one
way, that is to pose real risks to individual liberty.
This is why Alexander Hamilton, in the Federalist Papers,
described the benign prerogative of pardoning and stressed that
humanity and good policy conspire to dictate that this power
should be as little as possible fettered or embarrassed. What
the framers fully understood is not just that clemency is a
benign power, but that efforts to limit it or undermine
clemency authority can be malignant to those who care about
human liberty.
Those realities account for why I find so deeply troubling
any Justice Department efforts to re-prosecute any clemency
recipient for conduct related to a clemency grant. Besides the
particulars of any one case, the transcendent structural and
constitutional principles at issue here make the particulars of
one case, actually, somewhat beside the point.
There is always going to be some government official who
thinks to themselves, convinces themselves, maybe even
convinces others, that some clemency grant wasn't truly
deserved or was in some way unjustified. That is always going
to be an argument that those who prosecuted think is
convincing. Our Constitution's text, history, and tradition
makes plain that once a President decides to be merciful
through an official clemency grant, that is the end of the
matter.
Of course, what ends up being endless are the harmful
consequences that can flow from any precedent that there can be
a post-clemency re-prosecution. The chill that this creates for
thousands of individuals who have received pardons and
commutations from past Presidents, they can no longer feel
secure in the repose that clemency is supposed to provide.
It is so common for prosecutors in the Federal system to
pursue multicount indictments and oftentimes those counts
aren't fully resolved through the plea or trial process as was
true in the Esformes' case. In a world with post-clemency re-
prosecutions, any unresolved count becomes a tripwire for
clemency recipients and that could have echoes through the
entire justice system.
More broadly, of course, the public is sure to lose faith
in the clemency process if they learn that the punitive whims
of prosecutors can lead to the circumvention of clemency grants
through re-prosecutions.
There has been mention of acquitted conduct. I appreciate
that coming up because it seems to me that's another example of
where we see prosecutorial zeal overcoming our Constitutional
checks and balances. I surmise it is the same kind of tunnel
vision that sometimes prosecutors get where they ignore whether
it is a jury acquittal or a Presidential commutation to want to
add punishment anew. To me that is just so worrisome in both
kinds of cases.
I so respect the work of this Subcommittee and the
Committee to move forward the acquitted conduct, Prohibiting
Punishment of Acquitted Conduct Act. I suggest moving that
forward again.
I also highly recommend, it was already discussed, but I
would love to discuss more in the Q&A, creating a clemency
process, perhaps with a separate clemency board or other
independent of the Justice Department unit that assists the
President, creates a regularized process so that there can be
consistency and robust use of the clemency power that not only
is critically important for individuals seeking clemency, but
for our broader understanding of the importance of this power
as a way to check and balance the government's awesome powers
to punish. Thank you so much and happy to answer questions.
[The prepared statement of Mr. Berman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Professor. Now, we are going to turn
to you, Professor Osler, for your five minutes.
STATEMENT OF MARK OSLER
Mr. Osler. Thank you, Mr. Chair, and the Members of the
Committee. It is a pleasure to be back before you, and it is an
honor to serve with the two experts on either side of me as
well.
I am a law professor in Minneapolis at the University of
St. Thomas. I am a former Federal prosecutor and later this
summer, I am going to be taking a leave of absence to serve as
the Deputy County Attorney in Hennepin County, Minnesota, and
the head of the criminal division.
For the past 14 years, I have studied clemency. Initially,
I was spurred in that direction by Doug Berman, in fact. I
personally drafted dozens of pro bono clemency petitions and
supervised hundreds more. I am profoundly discouraged by the
State of Federal clemency and the role played the Department of
Justice in the White House in that process.
Currently, there are nearly 17,000 petitions pending and
little hope for those who have submitted those petitions, many
of whom I know and have worked with. My understanding is that
the Members of this Subcommittee would like to discuss the case
of Philip Esformes, which raises important questions. I hope to
do so in the context of the broken clemency evaluation system,
which failed both him and those thousands of people who wait
with dimming hope for a decision on their own petitions.
The Department of Justice may prove to be brutally
efficient in recharging Philip Esformes on the hung counts in
this verdict. Meanwhile, they are with the White House brutally
inefficient in providing thorough and consistent advice to the
President on clemency petitions.
In my written testimony, I have included a chart, which
shows the current evaluation process, which has at least seven
levels of review, one after the other. One way to think about
it is there is water flowing through a pipe, and there are
seven valves in that pipe, each one of them spring loaded shut.
They have to painstakingly be opened for the water to flow
through and for a petition to be granted.
The first step is the pardon attorney's staff that
evaluates the case. As was mentioned previously, they are going
to get the opinion of the U.S. attorney who prosecuted the
case. That person will make a recommendation to the pardon
attorney. Then it goes to a staff member for the Deputy
Attorney General who makes a recommendation to the Deputy
Attorney General. This is all within the Department of Justice,
four separate levels of subject reviews. Then it goes to the
White House. There it goes to the White House counsel's staff
and then to the White House counsel. Then maybe, sometimes,
rarely, never, to the President. This doesn't work. Of course,
it doesn't work.
Those of you who have a background in business know no
business would make decisions this way. So, Presidents get to
the end of the term, and they have gotten no good
recommendations or very few. They decide to act outside the
system largely. That's what was happening on December 22, 2020,
when this grant was made to Philip Esformes.
At that time, President Trump had made 16 commutation
grants up to that point in the first nearly four years of his
term. In that last month, he made 78. So, there is a mad rush
at the end that makes proper advisement impossible.
So, this warrant, this pardon warrant, was silent as to the
hung counts and that's just bad drafting. President Trump could
have simply pardoned the hung counts or made it clear that he
wasn't doing so, but that didn't happen. That didn't happen
because this system doesn't work. It failed Philip Esformes. It
failed justice. It is failing the 17,000 people who are waiting
and who call me and write to me wondering what is going on with
their petitions.
As a person of faith, I am outraged that mercy, a value
embedded in my faith and in the faith of many others and in the
Constitution, is given no respect in this system. If you are a
businessperson, you should be outraged that a process is being
used that no good business would adopt, to decide human fates.
If you are a progressive, you should be outraged that a system
that systemically and disproportionately harms the people who
have the least is denied this safety valve.
If you are a Libertarian, you should be outraged at this
tool to grant, to literally grant, liberty when it has been
earned and deserved is stifled. If your goal here is just to
protect the institutional power of the DOJ, you probably like
things the way they are. Thank you.
[The prepared statement of Mr. Osler follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Professor. Mr. Tolman, you are
recognized for your five minutes.
STATEMENT OF BRETT TOLMAN
Mr. Tolman. Chair Biggs, Ranking Member Jackson Lee, and
Members of the Committee, thank you for the opportunity to
testify before you today.
As a former Federal prosecutor and former U.S. Attorney and
now Executive Director of Right on Crime, I am concerned about
DOJ, including their vision of clemency.
Thomas Jefferson wrote,
The most sacred of the duties of government is to do equal and
impartial justice to all its citizens.
Philip Esformes deserves no less, yet DOJ appears
determined to deny Mr. Esformes that justice, which is supposed
to be the bedrock of the American legal system.
DOJ's unflinching decision to retry Mr. Esformes on the
open counts betrays its prior representations to the court,
nullifies a Presidential Grant of Clemency and what should
concern us all is nakedly vindictive.
This complete disregard for our core Constitutional
principles cannot and should not be tolerated. Before we can
fully capture the extent of the problems with DOJ's
unreasonably dogged pursuit of Mr. Esformes, we must first
acknowledge how rare and precious Executive Clemency has become
at the Federal level. In recent decades, Presidents have
typically granted some form of clemency to no more than a
couple hundred individuals over the course of an entire
Presidential term.
President Biden, for his part, outside of his dramatic, but
largely empty announcement on marijuana convictions, has
granted a mere 120 petitions in his first 2\1/2\ years in
office, most of whom were already out of prison. Small in
absolute terms, these clemency actions are positively minuscule
compared to the volume of petitions for clemency the Executive
Branch receives.
As of this month, for example, there are 16,933 pending
clemency petitions. One look at the current clemency process,
decades in the making and reinforced by President Biden, and it
is not difficult to see why clemency has nearly disappeared.
In short, our leaders have forgotten Alexander Hamilton's
own observation that humanity and good policy conspire to
dictate that the benign prerogative of pardoning should be as
little as possible fettered or embarrassed and instead allowed
clemency to be controlled in large part by DOJ, the very same
DOJ so dismissive of clemency and eager to undercut it in Mr.
Esformes' case.
Individuals seeking clemency must send their petitions
first to DOJ, the same government agency responsible for their
convictions. It is a system with a strong structural bias
against clemency that practically begs of conflict of interest.
It is an awesome power and rightfully among the relatively few
authorities explicitly enumerated in the U.S. Constitution.
Unfortunately, the fact of Mr. Esformes' saga revealed DOJ
has lost sight of its founding mission and is willing to take
any steps and push past legal and ethical boundaries to get
what it wants.
In 2016, Philip Esformes was tried by a jury, which found
him guilty of 20 counts. The jury did not reach a decision on
an additional six counts and did not convict him on healthcare
fraud and conspiracy.
At Mr. Esformes' 2019 sentencing, even though he was
acquitted of the two counts of healthcare fraud, and the jury
could not reach a verdict as to the healthcare fraud
conspiracy, the judge sentenced Mr. Esformes as though he had
been convicted. On the 20 counts of conviction as found by the
jury, he would have been facing five years in prison.
At DOJ's insistence, the judge considered the acquitted
conduct and the unadjudicated healthcare fraud conspiracy
charge and increased Mr. Esformes' sentence to 15 years,
imposing a 20-year sentence.
After DOJ suggested the retrial of six unadjudicated counts
as an option, the judge said, I announced at the time of
sentencing that in imposing the sentence, I considered the
healthcare fraud conspiracy conduct and five undecided counts,
so I don't know what more DOJ is going to get out of the case
on the additional counts.
Ultimately, on December 22nd, after spending almost five
years in prison, President Trump commuted his sentence. A few
months after the clemency warrant was issued, DOJ announced its
decision, despite having committed to not continue to prosecute
Mr. Esformes in open court that they would continue to
prosecute him on the open counts.
The government is intent on retrying Mr. Esformes on counts
based on conduct that formed the basis of his 20-year sentence,
which was commuted. Another fundamental and equally compelling
concept of our criminal justice system is the double jeopardy
clause of the U.S. Constitution which provides that no person
shall be subject to the same offense or be twice put in
jeopardy of life or limb. Any retrial of Mr. Esformes appears
violative of the Presidential commutation and the double
jeopardy clause.
Recent events, however, clearly show that for the right
defendant, the son of a current President for example, DOJ is
willing to allow a person to move on with their lives. The
legitimacy of the entire criminal justice system suffers in the
face of such disparate treatment where a second chance appears
granted based more on who a person is rather than what they
have done. Thank you.
[The prepared statement of Mr. Tolman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, and we appreciate the opening
statements of all our witnesses today. The Chair now recognizes
the gentleman from Alabama, Mr. Moore, for five minutes of
questioning.
Mr. Moore. I want to thank all the witnesses for being here
today. We appreciate you participating. It is amazing to me
that the American people have any faith left in our criminal
justice system at all.
The news from earlier this week definitely didn't help. We
are here today to talk about clemency in the case of Mr.
Esformes. It is hard to talk about anything other than the
elephant in the room, which I believe is a two-tiered justice
system.
Just yesterday, the Judiciary Committee heard from John
Durham. I think in many ways it confirmed the FBI and the DOJ
are corrupt. They are willing to go on political witch hunts on
certain political parties even if there are no grounds for
doing so.
We all know about the double jeopardy clause, the Fifth
Amendment. So, Mr. Tolman, I want to hear from you on this.
Could re-prosecuting someone after they have been granted
clemency be viewed as a double jeopardy issue?
Mr. Tolman. Especially in this case, I would say you are
going to have arguments that technically it might not apply
because the jury didn't reach a verdict. The jury was
impaneled, and the trial did occur on those same counts. The
judge clarified that he was sentenced on the counts he was not
convicted on.
Mr. Moore. Thank you for that. Hypothetically speaking, and
this is for any of the panelists that would like to answer, if
someone were to fail paying $100,000 in taxes and own a firearm
when they are a known drug user, would that person serve time
in prison?
Mr. Tolman. Having prosecuted hundreds of those cases, I am
not aware of any instance in which a diversion would be granted
under DOJ policy, and I reviewed several thousand similar cases
and did not see diversion as an available option from DOJ. Each
one served on average of 39 months in prison.
Mr. Osler. If I could speak to that.
Mr. Moore. Absolutely.
Mr. Osler. I don't have an answer for your question because
I don't have the data, but I think that is a problem, too, that
we don't have good data about the way pleas are negotiated.
They are national. I have heard this discussed. I heard some of
Mr. Durham's testimony. I know people have strong opinions
about what is normally done and what's not, and it is all over
the place and that's a problem.
One of the things that has been mentioned is the FIX
Clemency Act that was brought last year. Section 7 of that Act
would require a report on U.S. Attorney charging and plea
practices to be made. I think it is high time to do that
because when we discuss things like this, it would be great to
know what is actually being done in the shadowy world of plea
agreements.
Mr. Moore. Mr. Osler, as I was having hearings throughout
the district last year, one of the big concerns of people was a
weaponized DOJ, a fear for speaking up and being targeted. Mr.
Berman, would you like to try to address the question as well?
Mr. Berman. Sure. I am very inclined to agree with
Professor Osler that we need much more data, particularly in
the tax setting. It is such an example where there are just so
many laws that enable prosecutors with completely unregulated
discretion. Should I pursue this as a civil matter? Should I
pursue it as a criminal matter? It is entirely appropriate.
That there are people concerned that that choice will be
influenced by factors that shouldn't be relevant to the
operation of our justice system.
I think the lack of transparency we have when it comes to
prosecutorial discretion across the board really contributes to
an understandable and I think sort of highly problematic
concern that it is only the wrong factors that are shaping
prosecutorial discretion.
Then I will say that this is part of the concern I have
with DOJ more generally is they then will defend themselves in
particular cases and say, no, no, the right factors were here
but without a record, without all the data that we need to make
those judgments, we have to take their word for it when we
can't sort of see the work.
Mr. Moore. So, these are the charges for Hunter Biden, and
we all know he got a slap on the wrist. A while ago when the
Ranking Member was speaking, these were the things that he said
the reason is Mr. Esformes got a pass was he was White, he was
wealthy, he was well-connected, and had direct contact to the
President's desk. Do you think in some ways Hunter Biden got a
pass because of what they are accusing Mr. Esformes of having?
Anybody willing to answer that?
Mr. Tolman. The only thing I would say is there should be
outrage among especially inner-city prosecutions that have
occurred by DOJ for the similar gun charges for example.
Diversion is not an option. If you are not Hunter Biden or you
have the Biden name or you have money or resources, it goes to
the heart of what I think the professors are saying, too, is a
justice system that is geared toward favoritism and now toward
politics more than it is toward justice and fairness.
Mr. Moore. So true, Mr. Tolman. I am running out of time.
As we think about blind justice very often and those scales, we
see the statue, the terrifying thing for me for the American
people is when it is laser focused on political opponents. With
that, Mr. Chair, I will yield back.
Mr. Biggs. His time has expired. The Chair recognizes the
gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I thank the Chair. As I indicated, I
really appreciate you, Chair, for having this hearing. I hope
we can find common ground on one conspicuous set of facts is
that the backlog is just unacceptable. Then I would like to
thank Mr. Berman for joining me and my colleague, Mr. Cohen, on
that legislation that clearly should be adhered to of counts
untried and to even include them in essence acquitted or other
matters. So, thank you for that.
Also let me, to the gentleman bringing apples and oranges,
the case dealing with the family member of the President was by
a Trump appointed U.S. Attorney. So, whatever preference or
bias could have been imposed, we should ask that Republican-
appointed U.S. Attorney what his or her reasoning might have
been in this instance of him. So, why don't we just stay
focused on a very important topic.
I do understand that Mr. Esformes served four years. I
thank you Mr. Chair. I think the point I was making is that his
clemency process took just a month.
Mr. Osler, I would like to proceed with questioning in your
direction because I like the words that you have said
systemically, impacting the person that has the least, the
system does that. I think that we should be concerned about
that.
Let me ask you, Professor, can you walk us through how past
Administrations have typically reached pardon decisions and
what processes are typically followed? I have a series of
questions so--
Mr. Osler. Yes. Thank you for that question. It has evolved
over time. The current system developed organically. Nobody
planned this. It was basically people delegating to those lower
down, the Attorney General deciding not to be involved. It has
never been thought out.
Previous Administrations used processes where the Attorney
General would meet directly with the President. That was
usually somebody that the President trusted that would meet the
regular way. You say that--if you look at the clemency
statistics, very often the year with the highest number of
grants, including for Ronald Reagan, would be the third year or
the sixth year or the fifth year.
Ms. Jackson Lee. Let me proceed with some other
questioning. Then I want to acknowledge Amy Povah, Weldon
Angelos, Jason Pye, Kandia Milton, and Jeff Cook-McCormac, who
I had an opportunity to engage with on this topic. They, too,
recognize 17,000 backlogged cases. Did the Trump White House
follow these typical processes in exercising his clemency
powers?
Mr. Osler. I believe that they did in 25 of the cases that
were granted so about \1/8\ of the cases where there was a
grant.
Ms. Jackson Lee. So, how did the Trump White House deviate
from the procedures?
Mr. Osler. They had an informal process as I understand it
that sometimes, involved people who had submitted a petition
and sometimes those who submitted once they decided to press
for it, especially in that last period. It is hard to know what
process was actually used. I wasn't a part of it, and so that
opaqueness is the opposite of the transparency that this kind
of Constitutional imperative should require.
Ms. Jackson Lee. Well, in essence, we are throwing sort of
oatmeal up against the wall to a certain extent, which is not
helpful justice I would take.
Mr. Osler. Well, I can tell you this. I know a lot of the
people who didn't get granted in that period. It was
heartbreaking to watch the list come out and know that people
whose petitions have been entered years before, who had done
everything right, who had followed the rules, and had
remarkable reformations, were in that list.
Ms. Jackson Lee. So, when you asked--when I asked the
question what impact this had on those seeking pardons, it just
crushed them. Is that what you are saying? They followed the
rules, and they didn't see any light at the end of the tunnel?
Mr. Osler. That is correct. I received a message recently
from a woman named Sarah Carlson. We did her pardon petition.
She has been out for several years. She works for a faith-based
organization called Minnesota Adult and Teen Challenge. She
does fantastic work. She has proven that she deserves a pardon.
We submitted her petition years ago. She doesn't know why she
is not getting a chance, why she isn't getting a fair shake.
Ms. Jackson Lee. So, Sarah is her first name?
Mr. Osler. Yes.
Ms. Jackson Lee. Sarah and then there is a Ross Ulbrecht,
there is a Dr. Hamilton, and then there is a Reverent Kirbyjon
Caldwell who paid every cent of his alleged unfortunate
circumstance, every cent back to everyone.
Let me just quickly--is there anything that you think
Congress can do about the clemency process? How can we improve
it? With regards to the extensive backlog of clemency
petitions, it is an embarrassment to the Constitution. What can
Congress do to help these individuals? Can we just combine
those two answers?
Mr. Biggs. Yes. The gentlelady's time has expired. You may
answer.
Mr. Osler. Yes. Pass the FIX Clemency Act, focus on that.
Push this President to take clemency seriously. Not only has he
not granted many individual grants, but he hasn't denied
anybody Presidential action either. He has just ignored it.
Ms. Jackson Lee. Mr. Chair, quickly, enter by unanimous
consent the Memorandum to the Honorable Donald Trump on
November 6, 2020, and the Executive Grant of Clemency signed by
Donald J. Trump, President, December 22, 2020, as unanimous
consent.
Mr. Biggs. Without objection.
Ms. Jackson Lee. Thank you.
Mr. Biggs. So, ordered.
Ms. Jackson Lee. Thank you.
Mr. Biggs. The Chair recognizes the gentleman from
California, Mr. Kiley.
Mr. Kiley. I yield back to the Chair.
Mr. Biggs. Thank you. So, I want to ask a couple questions
because I don't think either party has really done a great job
handling clemency commutations and pardons. I don't want to
turn this into partisan things, but I think of things like Marc
Rich, you know? I mean, that is probably the poster child. He
still owed $48 million in back taxes, but he donated a million
bucks to the Dems and received a pardon.
Chelsea Manning, commuted the remainder of Manning's
sentence, and some said that was dangerous. Chelsea Manning
remained a danger. Then the one that always blew my mind was
when President Clinton granted clemency to the Puerto Rican
terrorist called FALN, F-A-L-N, if you remember that case. So,
those things really exist out there.
When we look at this, and we talk about the Esformes case,
in particular, because we want to see what is going on in a lot
of ways. What happens, and I'm going to ask all of you this
question, what happens to the system of the President's
authority when there is a retracing, if you will, by DOJ to
come back after somebody? These are unique facts, but everybody
has got unique facts in criminal law. What happens to the
overall perspective of the public and for those who, let's say,
you were in that group of FALN and that George W. Bush said,
OK, we are going to come after you.
So, I am going to start with Mr. Osler, go to Mr. Berman,
and Mr. Tolman that what is the impact when they start looking
back, the DOJ starts looking back on these clemencies and say,
we're going to prosecute?
Mr. Osler. Yes. It is damaging to both the process and to
the people who hope for clemency. We look at the process was
incredibly damaged by the Willie Horton story, if you remember
that.
Mr. Biggs. Yes.
Mr. Osler. That wasn't even a clemency. That was a
furlough, I believe.
Mr. Biggs. That's right.
Mr. Osler. When we had the Marc Rich grant, when that came
out, I was furious and so were a lot of other people because it
undermined the project of justice and mercy at the same time
through a lack of humility.
For the people that are involved, too, the people who have
petitioned, yes, when they hear about someone re-prosecuted, if
they do, that would be discouraging. Looking around at the
17,000 people who are waiting and waiting and waiting, that is
what is most discouraging.
Mr. Biggs. Thank you, Professor. Professor Berman.
Mr. Berman. I would add, and thank you for the question,
that it is discouraging for people who might think about
applying would be applicants if they have reason to be fearful,
as I think many would. Boy, if I even managed to get my case in
front of the President and get some kind of relief, DOJ might
just come back after me. Why should I bother and go through
that hassle and process if I am not going to get that reposed?
What really worries me even thinking longer term, is now when
plea bargains are being put together, are applicants going to
say, I need to have every single possible count against me
resolved. If anything is left lingering, boy, I won't even
bother to seek clemency because then I might be subject to it.
I doubt that the problem with re-prosecution would end up
growing so much because DOJ itself wouldn't want to do that
work and have those problems. I think the way this could
reverberate through our entire justice system shouldn't be
underestimated if it goes beyond just a single case and becomes
a precedent where there is a perception every time there is a
new President coming into office and a new DOJ that they should
take a look at the old cases and see if anything was not done
just quite right.
Mr. Biggs. Thanks, Professor. Mr. Tolman.
Mr. Tolman. Yes, the system is broken, and both sides broke
it. There is no question about that. I worked on clemencies for
Ross Ulbrecht and Jimmy Roseman, for example, both individuals
that believed that they would get a clemency, deserving of a
clemency for various and different reasons. Like Mr. Esformes,
everybody should have that availability to them. Now, their
questions that they have are even if I get it, is DOJ coming at
me? That would only be a DOJ that believes they are a fourth
branch of the government.
Mr. Biggs. Yes, to me it is--the Esformes case, when it was
brought to my attention, I thought, well, this is kind of
prototypical of the real issue that we see here. How is the
system where he got clemency? How is the system with DOJ now is
looking back? How do we fix the system? So, you've all provided
some kind of guidance on that. We will explore that as we go
forward. I appreciate those answers.
I am going to go now to recognize the gentleman from New
York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chair. Mr. Berman, it is my
understanding that in most recent administrations, the
President took the advice with respect to pardons and
clemencies from the administration of the pardoned attorney
until Mr. Trump took only one-eighth of his pardons from the
pardon attorney and the rest depended on someone who knew him
and recommended it to him. Is that the case? How has President
Biden handled it?
Mr. Berman. That is my understanding of the way things were
processed in front of President Trump and--
Mr. Nadler. What about previously?
Mr. Berman. Previously, there was an inclination to go
through the pardon attorney's office though I share, and I
think the other witnesses here agree, that's been a broken
process. The Department of Justice, try as it might to have a
pardon attorney office that isn't conflicted out by the fact
that prosecutors are all around. The reality is that office has
not been providing sensible and effective and regular advice to
Presidents really since it went inside DOJ and that's where I
think the flaw in the process is there.
If I could just have one moment to describe what I have
been working on with folks at Ohio State. In Ohio, Governor
Mike DeWine, when he was elected, he reached out to us and said
he wanted to do the process of clemency better, to do pardons
better and that he wasn't getting a good pipeline of
applications. He worked with our university, the Drug
Enforcement and Policy Center, also the Akron Law School Clinic
to build a pipeline where he announced criteria ahead of time
that he cared about for a pardon.
Then we worked on cases. Applications come to us. We judge
them by the criteria. We have no bias. Law schools are
independent, obviously, of the prosecutorial function. That has
been working incredibly well. Among the things that I have
learned through this process is it is an incredible amount of
work to build a file, to check records, to do everything that
is necessary to put a really good file together for an
executive official and say this is a good case.
Mr. Nadler. Do you think--
Mr. Berman. It is so much work that it is inevitable if you
don't have a really well-built process then it gets short-
cutted.
Mr. Nadler. Do you think that a similar process could work
at the Federal level?
Mr. Berman. I think it is worth looking toward. I think
that it is something that this Congress can do in this process.
Obviously, it is a Presidential prerogative to do pardoning. I
think this Congress can and should be looking toward building
that infrastructure, not leaving it to DOJ, not leaving it to
back doors.
Mr. Nadler. Thank you. Mr. Osler, Professor Osler, if
President Trump wanted to make it so that Mr. Esformes was
fully cleared of wrongdoing, could he have done that?
Mr. Osler. Yes, he could have pardoned the hung counts.
Mr. Nadler. Mr. Esformes received a pardon for the conduct
connected to the hung charges, would that have ended his
criminal case?
Mr. Osler. If he had gotten a pardon on the hung counts,
yes.
Mr. Nadler. If President Trump had pardoned Mr. Esformes
for the hung charges, would the U.S. Attorney's Office for the
Southern District of Florida be able to retry him on the hung
charges?
Mr. Osler. No.
Mr. Nadler. If President Trump had pardoned Mr. Esformes of
the hung charges, would he still be facing possible additional
prison time?
Mr. Osler. No.
Mr. Nadler. Are you aware of any cases like Mr. Esformes'
case where a commutation is given, but there are unresolved
charges left outstanding in the underlying case?
Mr. Osler. I am not aware of any, but I haven't done a
systemic search.
Mr. Nadler. Isn't it true that once a case is complete,
courts typically require resolution of all charges either by
retrial or dismissal, and Mr. Esformes' case was different
because his case was still going through the appellate process?
Mr. Osler. Well, as I understand it, it still--they can
seek cert on the appeal, so it is still in the appellate
process.
Mr. Nadler. My last question is, Presidents have broad
clemency authority. It is challenging to sift through the many
people who seek clemency to find those who are most deserving
along with the President's goals in exercising clemency. We see
through the Esformes example that petitioners and those
evaluating the petitions must be thoughtful and careful as they
maneuver through the clemency process. What changes in these
processes would you recommend to the Executive Branch?
Mr. Osler. Well, just in brief, Rachel Barkow of NYU and I
have proposed for years to have a Presidential Commission that
would directly advise the President. My home State of Minnesota
just this last term has adopted that system, changing our
clemency system.
Mr. Nadler. How would that commission be appointed?
Mr. Osler. It would be by Presidential appointment. So,
there is certain balancing that you would want to have in that
of different talents and so forth would be by Presidential
appointment. That's how it is conceived of in the FIX Clemency
Act.
Mr. Nadler. Thank you. I yield back.
Mr. Biggs. Thank you. I recognize the gentleman from South
Carolina, Mr. Fry.
Mr. Fry. Thank you, Mr. Chair, for having this hearing
today, and thank you to our witnesses for being here. U.S.
Presidents' clemency power obviously comes from Article 2,
which states that the President shall have the power to grant
reprieves and pardons for offenses against the United States
except in cases of impeachment.
You look at clemency just broadly, it is there to correct
the errors of law, errors of fact, changing circumstances. It
is a check on government, and it is, certainly, used by the
Executive, used seldomly maybe or more liberally in some
administrations. The point of it is to really get back to a
fair society. People were given clemency after they passed away
or while they are alive for crimes that they may have
committed.
In December 2020, we have been talking about Mr. Esformes'
prison sentence where President Trump commuted it and left
intact obviously the restitution and the forfeiture orders.
Once President Biden takes office, the DOJ announces that they
are going to seek to re-prosecute those hung jury charges.
I'm really concerned about why we are here today. You look
at this and where Presidents have that authority, it is deeply
concerning to me that we would, with the change of an
administration now come in and re-prosecute an entire fact
pattern where you had a hung jury. They had maybe opportunities
to do that and didn't do it. People are very concerned at home
about a Justice Department, a law enforcement agency continuing
to push things, and it is you versus the government in a lot of
ways.
Mr. Esformes has already spent 4\1/2\ years in prison. He
had a restitution order still intact of $5-12 million and a
forfeiture order of $38.7 million, but the DOJ feels compelled
to re-bring up these charges. I find difficult to see how this
is not a two-tiered justice system.
Mr. Tolman, I want to turn to you. Do you believe there is
any potential political or personal motivations driving the
decision to re-prosecute Mr. Esformes? If so, why do you think
that is?
Mr. Tolman. I do. I think there are because on the record,
the prosecutors told the judge that they would not charge those
hung jury counts if the conviction was upheld. It was upheld.
The word of the DOJ now when I was a prosecutor if I made a
representation even if my boss didn't like it, he was going to
back me up on what I represented.
Here they have gone back on their word. They are willing to
go forward. To Ranking Member Nadler's point about--could they
have fashioned a pardon on the hung jury counts? Yes, they
could have. If you are not outraged by DOJ doing this now, the
next DOJ, they won't worry. They will go a re-prosecute on the
uncharged counts.
You are down a slippery slope granting or accepting or not
getting outraged at DOJ doing this because you don't know what
power they are capable of, if you don't stop them now.
Mr. Fry. In your opinion, just looking at this
holistically, one of the things that I think had benefited this
country for a very long time is our faith in the institutions,
our faith in the rule of law, does this eradicate or erode
American citizens' faith in the rule of law, in our system, in
our justice system in your opinion?
Mr. Tolman. It absolutely does. I worked on a pro bono case
for a woman named Adrianne Miller. She was nobody, had no
money, and was granted clemency by President Trump. They need
to have that opportunity and know that's a possibility. In the
current system it is not. Then, you are going to add on top of
that the DOJ will ignore a Presidential grant of clemency to go
after them? It is offensive to our law-and-order system and to
our Constitution.
Mr. Fry. Mr. Tolman, in June of this year, you tweeted that
if the DOJ treated Hunter Biden like the thousands of no names
who get prosecuted, he would be looking at decades in Federal
prison. Yes, I said decades. I know I have 35 seconds left, but
do you care to comment on that, what you mean by that, and
maybe your thought processes in delivering that tweet to the
marketplace of ideas?
Mr. Tolman. There are so many mandatory minimums and such
ease to ratchet up a sentence based on, for example, when you
are sentenced for a fraud, it is the dollar amount. If it is
drugs, it is quantity amount. All of those get you to 20, 30,
40 years in the Federal system. Poor intercity defendants that
have been prosecuted for the same conduct--
Mr. Biggs. The gentleman's time has expired, but you can
continue to finish your answer.
Mr. Tolman. --poor defendants that were prosecuted for the
same conduct, they were laughed at if they ever asked DOJ for a
diversion.
Mr. Fry. Thank you, Mr. Chair. With that, I yield back.
Mr. Biggs. Thank you. The Chair recognizes the gentleman
from Tennessee, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair, and I appreciate you
having this hearing. I probably spent as much time on any issue
other than Mr. Trump's misconduct over the course of his
Presidency on the subject of commutations and pardons. In the
last several Congresses, I have introduced resolutions to limit
the pardon power. I know it takes a Constitutional Amendment to
do it, but that's the only way you can do it really. The idea
of having a panel is a good idea if the President would abide
by it.
My joint resolution, which I had introduced and
reintroduced this year because if it's good for the goose, it's
good for the gander. If it's good for Trump. It is good for
Biden. It wasn't about Trump. It was about the fact that the
system should be fair.
We have not allowed a President to pardon himself or
herself, any family member up to a third degree of relation of
the President or the spouse thereof, any current or former
Member of the Administration, any person who worked on the
President's Presidential campaign as a paid employee, any
person or entity for an offense that was motivated by directors
and significant personal pecuniary interest of any of the
foregoing persons, and any person or entity for an offense that
was at the direction of or the coordination with the President.
I think we should have a--that bill should come up for a
hearing and for a markup and that is what I think is an
appropriate response.
What happened in this case, some of the cases with
President Trump, as I understand it, now we picked this up
during the January 6th hearings, Mr. Kushner said that he was
not really aware of what was going on in the White House on
January 6th or immediately days before, because he was totally
involved in dealing with the pardons. That was Kushner's job at
that time was dealing with pardons.
That was shocking to me. Jared Kushner is not a lawyer. His
experience with the system is his father had been convicted and
was in jail. I think his father got, through the recommendation
of Mr. Kushner, a pardon. I may be wrong about that, but I
believe that is correct. Mr. Osler, do you know, did Kushner's
father get a pardon?
Mr. Osler. I believe that he did.
Mr. Cohen. Yes.
Mr. Osler. I would like to speak briefly to what you are
talking about. I think that--
Mr. Cohen. Sure.
Mr. Osler. --Mr. Kushner knew about clemency and pardons in
part because he did talk to experts about it. In August 2018, I
got a message from him asking to attend a meeting at the
Roosevelt Room. I asked if Rachel Barkow could attend as well.
We sat down for two hours and talked about clemency policy and
pardons.
Mr. Cohen. The pardons that he issued were mostly for
people with large amounts of money. Now, the President
mentioned in his interview with Bret Baier--is it Bret Baier?
Mr. Osler. Yes.
Mr. Cohen. I don't watch that station, but whatever. He is
supposed to be one of the better ones--of the pardon of Ms.
Alice Marie Johnson, and she is a constituent of mine.
Mr. Osler. Yes.
Mr. Cohen. She probably did enough time. She did 24 years.
It is a long time. Regardless, she was sentenced to life
imprisonment. He said, oh, she was just convicted of something,
it was dealing with marijuana. Of course, Bret corrected him.
As I see here, there are about 8-10 different crimes connected
all with cocaine.
So, the President really wasn't quite aware even on his
most high-profile case that was featured in the ad at the Super
Bowl who he pardoned and for what. A pardon should be available
for cocaine too, but you ought to know what you are doing.
Then as far as there is a lot of these healthcare fraud
cases here that were pardoned and that seems kind of--these are
people making a lot of money. There is a lady here I saw just
skimming through the list, Judith Negron. I don't know Judith
Negron. She might be help candy stripers or whatever they are,
Girl Scouts and sell cookies and everything else. She was
sentenced to 420 months imprisonment and had an $87 million
restitution, $87 million of restitution. She must have been a
pretty active criminal. She got a pardon, conspiracy to commit
healthcare fraud. That is a serious thing, healthcare fraud and
that is what this gentleman was doing.
Mr. Osler. Well, I can see we are former fellow
prosecutors. We know that the way that the amount of loss can
be calculated can take in a lot that the person who didn't do
individually. I believe that Ms. Negron was someone that was
vouched for by Alice Marie Johnson and who she had known in
prison, and she vouched for her reformation.
One thing that we do see, and this was true of some of the
grants that President Trump made, was that people who had
lower-level involvement in major conspiracies were given long
terms and some of them were given relief through clemency.
Mr. Cohen. I only have 20 seconds to go, and I guess this
is conjecture. I wouldn't be surprised if the amount of money
you had and the opportunity for somebody who was issued could
charge to the pardon office had an opportunity to get some of
that money for their new hedge fund, just like they got $2
billion from the Saudis. That's wrong to put somebody who has a
financial incentive to help somebody who is wealthy and got
money and about it in charge of giving them their freedom. It
should be totally detached--
Mr. Biggs. The gentleman's time has expired.
Mr. Cohen. --and Caesar's wife and beyond, blah, blah,
blah. I yield back the balance of my time.
Mr. Biggs. There is no time to yield back, brother. I will
recognize the gentleman from Georgia, Mr. Johnson.
Mr. Johnson of Georgia. Thank you. There is a case out of
the Supreme Court of New York that was filed. It is Dunphy v.
Rudy Giuliani. In that case, in that civil case against Rudy
Giuliani it is alleged in the pleadings that Jared Kushner and
Rudy Giuliani had a scheme in place to cause folks to pay them
$2 million for a pardon or a commutation. Those are just an
allegation that is made, no proof. It is made in a pleading. A
lady says, Dunphy says, this is what Giuliani told her. So,
this is the kind of--this is what ensues from the kind of
process that was in place during the Trump Administration
insofar as pardons and commutations are concerned.
Professor Osler, can you walk us through how past
Administrations have typically reached pardon and clemency
decisions and how that process differed from whatever the
process was for Trump?
Mr. Osler. Yes. Frankly, the process has been, as I
described earlier, for the past five or six Administrations,
going back to the Reagan Administration, so they have all been
failed in the same way. We have seen over and over this mad
rush at the end where they realize they want to do something.
That brings us things like what we saw with Marc Rich coming
through at the end as well.
This invites all kinds of terrible problems. Probably more
than looking at prior Administrations, which had the same
system, it is smart to look at other States or the State
systems, where we do see some high functioning--
Mr. Johnson of Georgia. I guess the point I want to make is
that it is a good idea to have a system in place like the Obama
Administration had that it did not deviate from and there was
no mad rush to issue pardons and commutations at the end of the
final hours of an Administration and the mechanism protected
against insiders getting pardoned, like Paul Manafort and Roger
Stone. That is the point that I want to make.
As far as this case, Mr. Esformes, that we are talking
about today, this is a gentleman who was convicted in the
largest healthcare fraud scheme ever investigated by the
Department of Justice. A Federal jury convicted Mr. Esformes on
20 of 26 counts and sentenced him to 20 years in prison. So, he
was six counts hung jury. Those hung jury counts were just
hanging out there as he was serving his sentence whereupon
Trump, out of his back pocket with no process, just decided to
pardon him.
I don't know whether or not it was because somebody paid
someone to get that action. I am not making that allegation.
The fact is he got out. Those charges were still pending. So,
hasn't it been your experience that prosecutors have the
authority to retry a defendant who has been acquitted on some
charges with other charges having arrived at a hung jury and no
final disposition on? Don't prosecutors have the power to retry
the individual?
Mr. Osler. As Mr. Tolman said earlier, I agree with him,
that does happen and that is from the understanding of the law.
Mr. Johnson of Georgia. That is prosecutorial discretion.
The case had not been dead-docketed or nolle prossed, because
the individual had not completed his or her sentence. I am
talking about Mr. Esformes. He had not completed his sentence,
so those charges that the jury hung on were still hanging out
there and then he gets a clemency. He gets out of jail. Now the
prosecution wants to charge him, wants to try him on those
charges. There is nothing wrong with that. It happens every
day. By the way, Republicans talk about a two-tier system of
justice, but they talk about it in terms of being for White
males who have always been privileged when I find that we have
a two-tier system of justice for people of color.
Mr. Biggs. The gentleman's time has expired. That is some
of the most outrageous--I recognize myself for my five minutes
of time, which I haven't taken. That is some of the most
outrageous, illogical argument I have heard.
Let me ask each of you. Does it happen all the time, as the
gentleman just said, where a President grants a clemency or a
commutation and then the DOJ says we are going to go back,
reinvigorate our prosecution against that person? Does that
happen?
Mr. Tolman. I did as much research as I could, and I cannot
find a single instance of DOJ re-prosecuting a commutation.
Mr. Biggs. Not a single case. Mr. Osler, did you find any
case? Are you aware of any case?
Mr. Osler. As I said, I didn't do a systemic check, but I
don't know of one. Now, I understood the question to be about
hung counts generally where you don't have a commutation.
Mr. Biggs. Right. That is not what he--that is not the
conclusion he drew, right, Professor Berman?
Mr. Berman. Yes, I was struck because I am not aware of any
case, let alone cases happening all the time where there is a
re-prosecution after a clemency grant.
Mr. Biggs. Let me just tell you my experience, and I wasn't
a Federal prosecutor, but I can tell you my experience is if
you have got convictions over here, you had a case sitting over
here on a hung jury, we typically would just be happy and move
on. That is typically what happened.
In this particular instance, the prosecutor said they were
going to move on. Mr. Tolman?
Mr. Tolman. Can I clarify one thing? He raises--I don't
like the process. I am not defending the process that occurred
under President Trump, but it occurs under every President
toward the end. It is not the right process.
I can say Mr. Esformes did not use money or political
influence to get his commutation. In fact, he had two prior
Attorneys General, Ed Meese and Michael Mukasey and Deputy
Attorney General Larry Thompson requesting that he receive
clemency largely based on misconduct that DOJ admitted to that
was reckless.
Mr. Biggs. Right. I am glad you brought up the misconduct,
which nobody has brought up before. I am going to ask you some
more generic questions and try to get at this. Do you see any
limitation in the Constitution right now on a President
granting clemency, pardon, or commutation? Mr. Berman.
Mr. Berman. In all Supreme Court cases and obviously the
text is, it is extraordinarily broad, covering all Federal
offenses except in cases of impeachment.
Mr. Biggs. Right. That is the way I read it. It is just
really broad. I don't know what the limitation is other than
impeachment, right? So, this notion that somehow it is okey-
dokey to go back and basically take this, Mr. Esformes, and
say, well, dog gone it, we thought he had a really bad set of
facts, and so we need to retry him on some of these things to
hold him accountable. I am sorry. It appears to me to be biased
or motivated from something other than the crime because they
used the hung-jury crimes to enhance his sentences. Is that not
true, Mr. Osler?
Mr. Osler. I believe that the sentence was drawn in part
from the hung jury.
Mr. Biggs. Right. So, they used those essentially as
enhancers to the sentencing, right?
Mr. Osler. The way the sentencing guidelines work, there
are going to be enhancements that come in.
Mr. Biggs. Right. Not typically hung jury or acquitted
cases, right, Mr. Tolman?
Mr. Tolman. Yes. That is one of the great flaws in the
Federal system, and I argue is unconstitutional is that you are
allowing judges to sentence on acquitted conduct and even
uncharged conduct.
Mr. Biggs. Yes. That is true. That is a different issue
that we have got to get to and fix as well.
Mr. Tolman. I am glad to help on that.
Mr. Biggs. Yes. I will say this when I teach my first-year
law students about the use of acquitted conduct to sentence,
they are appalled. It is the one time I see consciences
actively being shot. I will just tell you it is really
different from the State cases, too, that I was involved in.
You never could use that kind of enhancement for sentencing.
That is pretty amazing.
So, as we get through here, we have got a lot of work on
our plate that we have to do, and we are going to keep going
forward with that. So, I just want to say as we close out the
hearing, thank you for being here. I think it is a travesty
that we are here on the Esformes' case. It is a travesty that
we have a process that seems to be almost unrelentingly broken
that has to be fixed. So, I am certain that my Ranking Member
and I would be happy to work with all of you and see if we can
come up with some meaningful changes. With that, we are
adjourned.
[Whereupon, at 3:47 p.m., the Subcommittee was adjourned.]
The record for this hearing by the Members of the
Subcommittee on Crime and Federal Government Surveillance is
available at: https://docs.house.gov/Committee/Calendar/
ByEvent.aspx?Event ID=116141.