[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
         
         
         
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               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:]
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    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.