Ceo testifies for the House Financial Services committee on the gamestop price increase and the decision to hold trading on its platform. Thursday at 12 00 p. M. Eastern, watch on cspan, listen on cspan. Org or listen on the free cspan radio app. At the Senate Judiciary subcommittee on constitution, members discussed a president s clemency powers. Before we go into our committee, i would like to express to the chair and numbers of the committee and the congress sadness at the passing of representative white. He served for short time but he was a gentleman and we will miss him. We mourn his loss. And i would like for us to have a moment of silence in his honor. [no audio] thank you. Thank you. Mr. Johnson, if you would like to lead us in prayer on the passing of our colleague, you will be recognized. Thank you, mr. Chairman. Our colleague chip roy has joined us and was on an inter field this morning and said it well, he was a good man and served his constituents of this country. Interview this morning and set it well, he was a good man and served his constituents of this country. Heavenly father, we are reminded this morning of the preciousness of life and how fleeting it is. I pray representative rights example would be one that serves as an example. He was committed to you and all he served in his country. Let that be a shining example to all of us. Let us be reminded that life is short and we make the most of it. We pray for the family, all those involved, his constituents and all our colleagues as well that you bless, and continue to bless them and to mend the work of our hands. All of this i pray in jesus name, amen. We will now welcome everybody to todays hearing on constitutional means to prevent abuse of the clemency powers. I would like to remind members new and returning that we have established an emailed dress gmail address and distribution address for materials members might want to offer as part of our hearing. If you would like to submit materials, send them to judiciarydocs mail. House. Gov and we will distribute them as quickly as possible. I recognize myself for an opening statement. I am pleased to convene the first hearing on the subcommittee on the constitution civil rights and Civil Liberties for the 117th congress. I look forward to working with the Ranking Member and other members on pressing issues that will be facing us in the years to come. While we will no doubt have disagreements, it is my hope we will always be able to disagree within the guardrails of respect as colleagues. Each of us here represents our constituents faithfully and to the best of our abilities. We begin by picking up on a topic we devoted hearings to in the previous congress, which is the proper scope and use of a president s constitutional power to grant clemency. The clemency powers outlined in the constitution the clemency power is outlined in the constitution as a safety valve or our criminal Justice System to correct injustice and to temper excessively harsh punishments. There are few things more fiercely urgent than the need to grant clemency to the thousands who suffer from the burdens of unjust imprisonment or collateral consequences stemming from their convictions. These burdens are disproportionately borne by people of color. I have long been concerned by the stinginess with which modern president s have granted clemency, beginning in the 1980s with the socalled war on drugs that really goes back to the 1970s. Between 2013 and 2014, i wrote letters to president obama and attorney general holder urging them to become more involved and grant more clemency petitions. I offered Opinion Pieces on the subject calling for more clemency grants. I had written the president early in his second term and told him i had three things i wanted him to work on, including cannabis and commutations. It was alliterative, but he was shy on clemency. I commended President Trump for commuting the sentence of Alice Marie Johnson and urged him to do more than his predecessor, who issued a great number of limits hies great number of clemencies, and asked him if he would do more in granting clemency in cases like that of misses johnson. I have asked President Biden to look into clemencies. We are talking about freedom. We know both caucuses appreciate freedom. When considering proper use of clemency power, there is a consideration of whether there should be limits when the president uses the power for selfserving purposes. President s have issued controversial pardons that raise these questions, which is why they have longstanding interest of this subcommittee. They are not in keeping with the purpose of clemency power. In 2019, the subcommittee considered whether president could self pardon. The consensus among all witnesses at the hearing, including the one requested by the majority, is that the constitution would likely prohibit self pardons. During the nixon administration, the department of justice concluded self pardons would be unconstitutional, under the basic principle no one should be the judge of his or her own case. Questions about the proper scope of clemency power took on urgency during the recent presidency. No president is permitted to abuse his office to obstruct Law Enforcement investigations, yet the manner in which President Trump used clemency power throughout his presidency raised concern he may have been willing to do just that to protect himself and political allies. During the investigation of the special counsel, Robert Mueller, into possible russian interference in the 2016 president ial election, President Trump dangled the possibility of pardons for witnesses who refused to cooperate, specifically paul manafort, Michael Flynn and roger stone, Senior Campaign advisor. He would pardon all three these individuals after their convictions for criminal offenses stemming from the mute or investigation, during his final weeks in office. In addition to the mute or investigation, President Trump used the clemency power in other potentially selfserving ways, as most who received limits he had a personal or political connection to him mostly. That seemed to be the thread, rather than the crime or sentence. This included clemency for four former republican members of congress, one of whom i was personally close to. Nevertheless, they had been convicted of criminal offenses ranging from bribery, insidertrading, misuse of Campaign Donations. Charles kushner, his soninlaws father and former white house chief strategist steve bannon, who was awaiting trial on his granting clemency to themselves, prevent clemency for the family to the third degree, paid Campaign Staff or any person or entity that committed an offense and a catchall provision making a pardon invalid issued for a corrupt purpose. I introduced similar resolutions in the previous two congresses. I would also like to talk about ways to improve the clemency process, transparency and the timing of pardons and commutations. Specifically, i would like to hear the witnesses views about Public Notice of pardons to get around the issue of possible secret pardons or connie tatians that might be issued before election day. They had suggested some kind of prohibition but i have to have some time and notice, so if it was a secret pardon, that would have to be addressed. Public notice of pardons so voters have notice, not only in a president ial Election Year but in the first term. Providing [indiscernible] amending the department of justice respecting the comments he process. This will not be our last look at the clemency process, including from a criminal Justice Reform perspective. I thank our witnesses for being here and i look forward to the discussion. Now i would like to recognize the gentleman from louisiana from his for his opening statement. I appreciate that. Article two section two of the constitution says the President Shall have the power to grant reprieves and pardons except in cases of impeachment. Some president s have used this power more than others. They do this based upon their own conceptualization of justice and most of the country has always respected that. President trump issued 237 total pardons and commutations in his time in office. By comparison, president obama issued 1927 pardons and commutations. President bush issued 200 and president clinton issued 417. Many of president obama was pardons were controversial, including chelsea manning, who endanger National Security by leaking classified information. A top leader in terrorist and james cartwright, who lied to federal investigators. President bush commuted the sentence of lewis scooter libby, which was controversial. President clinton issued pardons to his own brother for drugrelated offenses to a fugitive political donor, mark ridge, to his cia director and several individuals connected to the scandals in their own administration. Most recently, President Trump pardoned roger stone and Michael Flynn. All of these president s issued pardons that were controversial with the opposing party and many segments of the public. But despite the fact, the majority introduced the abuse of power prevention act last congress. Republicans explained the bill was unconstitutional in a Committee Markup last july. Nevertheless, the committee favorably reported the bill on a partyline vote. Recently, the chairman introduced the proposed constitutional amendment he just mentioned to narrow the pardon power. I have several significant concerns with this amendment. Among other issues, it vaguely declares that pardons issued for a corrupt purpose shall be invalid. The problem there is it is vague and overbroad language and is not a framework or workable standard for what amounts to a corrupt purpose. Im sure the majority would argue certain pardons issued by President Trump or issued for a corrupt purpose while most republicans would argue they promote justice. This issue of partisan fashion is precisely why the founders structured the pardon law exactly as they did. Alexander hamilton argued against the pardon power because he said when the offense proceeded from causes which inflamed resentments of the major party, they may often be found obstinate and inexorable when policy demanded a conduct of forbearance and clemency. James madison similarly argued legislative involvement in the pardon power we would be improper because the bodies in the moment of vengeance, they forget humanity. Similarly, a narrow pardon powder pardon power was proposed in the Constitutional Convention for good reason, that [indiscernible] the pardon power is best vested in the president as it was designed in the constitution for the president to exercise as they see fit based on their personal judgment and notion of justice. I thank our witnesses for appearing this morning. I look forward to your testimony and i hope we can have a productive conversation. With that, i yield back. Thank you, mr. Johnson. Unanimous consent, to admit the chairmans statement into the record. I would ask for jannes consent. With that, his statement will be entered into the record. The Ranking Member, mr. Jordan is present and if he chooses to make a statement, he is recognized at this point. Mr. Chairman, im fine. Thank you. Now we will go to witness introduction. We welcome our witnesses and thank them for participating in todays hearing. I will introduce each witness and after that introduction will recognize the witnesses for his or her own testimony. Please note your written statement will be entered into the record in its entirely. We ask you to summarize your testimony in five minutes. In the absence of a proverbial timing light, i will note when five minutes have elapsed and bang my gavel, all otherwise known as a Louisville Slugger miniature bat. There will also be a timer on your screen, so please be mindful. I would like to remind all of our witnesses that you have a legal obligation to provide truthful testimony to the subcommittee. Any for statement you make may subject you to prosecution under section 1001 of title 18 of the United States code. Our first witnesses carolyn fredrickson, the distinguished visitor from practice at Georgetown University law center and a senior fellow at the Brennan Center for justice at New York University school of law. She teaches courses on the legislative process, constitutional law, and democracy. She was previously the president of the American Constitutional Society for law policy and has had an extensive career, serving a special assistant to the president for legislative affairs in the Clinton Administration and cheap staff chief of staff to Maria Cantwell and counsel for senator tom daschle. She served as a law clerk for james l looks on the second circuit. She received her jd from columbia University School of law where she is a stone scholar and served as editor of the columbia law review. She received her ba summa can lata from yale university. You are recognized for five minutes. Thank you so much, mr. Chairman. Im pleased to have the opportunity to appear before you today on this important topic. As has been said, the pardon power gives the president the power to address injustices and show mercy. However, the brett of this power has made it susceptible to misuse. Just before leaving office in 1992, president work president George H W Bush farmer secretary of defense Caspar Weinberger and five others convicted in the irancontra scandal. President clintons pardon to mark ridge, a fugitive felon indicted for fraud and tax evasion and the exhusband of a major donator donor to the Clinton Foundation and Hillary Clintons Senate Campaign was rightly criticized. But former President Trump has gone even further in granting questionable pardons. On his final day, trump pardon 74 people and commuted the sentences of 70 others, including a person convicted of fraud in medicare to the tune of 75 million. The pardon power was intended to be a benevolent power, but there are several wellrecognized limits on its exercise. It only extends to federal crimes. It may not be used to obstruct justice, and a self pardon is constitutionally suspect. Congress could reform the pardon power by constitutional amendment. It is the chairmans proposal it would limit the pardon power to grant such a pardon to himself, his family, his Administration Officials or campaign advisors. It would prevent pardons undertaken for crimes committed in cooperation with the president. The chairman rightly states the power often operates like a get out of jail free card more than a grant of mercy to those who have been clear victims of injustice. Congress could reform the pardon power by creating statutory limits. There is a bill introduced by representative adam schiff that would present to important reforms. His bill would require the doj and president provide congressional materials related to the prosecution as well as the pardon and would strengthen the bribery statute by clarifying its application to the president and Vice President that it is an official act to grant a pardon and that such a grant is a thing of value. The amendment would assure the bill would ensure any offer of a pardon or a pardon itself would be a criminal act if part of a corrupt exchange and declare president ial self pardons in valid. Theres reason to believe this legislation would withstand constitutional challenges. It is widely accepted congress may impose penalties on a pardon intended to bribe a recipient. Since the legislation does not attempt to circumscribe the grant of a pardon and does not tread near the article to powers and the doj has issued opinions consistent with this understanding, in october 1995, there was an opinion that stated if the application of the bribery statute raises no separation of powers, let alone a serious one. According to olc, the constitution confers no power in the president to receive bribes specifically for any increase in the compensation which is what a bribe would do. With a respect to a president s pardon of him or herself, as is well known, in 1974, there was another opinion that stated such a pardon is illegitimate. Another bill meriting consideration would require the president to publish the issue date and fulltext of each pardon or reprieve granted. Even if not limiting to him or for what reason they pardon could be granted, such legislation would bring intention to ill considered grants. Another area where congress could unleash the pardon power is its oversight function. After president clinton pardoned mark rich, congress engaged in a thorough and bipartisan investigation. Though no criminal charges were issued, congress did uncover some highly question all behavior, including efforts by president clintons effort to lobby for his brother. The president s power is in awesome power, a power for good. It is often used it is not often enough used for good and is sometimes used for ways that is abusive and congresses right to take up the task of restoring the pardon as a benevolent power. Thank you. Thank you. You have obviously been here before because you know how to do five minutes on the nose. Our next witness is the president of common cause, a position she has held since 2016. Its a nonpartisan, Grassroots Organization dedicated to upholding the core values of american democracy working to equate open and honest Accountable Government and support equal opportunity for all and he put a goal process. She has been with common cause for the last 28 years in various capacities. In that time, she worked to expand common causes efforts with election reform, curbing the influence of big money in politics and ethics and accountability reforms. She has written and spoken frequency frequently on democracy issues about the influence of money in politics, voting rights, ethics, and conflict of interest reforms. You are recognized for five minutes. Thank you for inviting me to testify at this important hearing. Members of the subcommittee, i am pleased to be here as president of common cause, a national Nonpartisan Organization with more than 1. 5 million reporters working for an open and accountable democracy. The pardon power is a potent tool for justice. Unfortunately, it can also be used to obstruct justice. I hope my testimony today will help you. I must say that executive clemency is complete without first acknowledging the broader problem of our criminal Justice System. Systems of mass incarceration continue to ravage communities, often violently wrenching black and brown people out of their homes and dumping them in steel cages at alarming rates. Races Public Policies have disparate impact on black and brown people and committees. Until Congress Passes sweeping criminal Justice Reform that routes out racism, classism and xenophobic practices at all levels of the Justice System, we must encourage the president to use clemency as a tool to chip away at injustice as president obama did during his term and i discussed further in my written testimony. But elections have consequences, including those receiving clemency. Many of President Trumps pardons were for wealthy friends, including war criminals, corrupt insiders and others who obstructed justice by lying to congress and Law Enforcement. This is a challenge we have seen with other president s. We believe President Trump abused the pardon power to send the message that they use dave they view themselves as above the law. President trump signaled his intent to award obstruction and subvert accountability to further his own plug power. His efforts were open and notorious. Special counsel or mueller detail this in his report, noting that many of the president s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons took place in public view,. Among this pardon, Michael Flynn, who twice pleaded guilty to lying to the fbi and former campaign chairman, paul manafort, who encouraged witnesses to lie on his behalf. Roger stone, convicted of obstructing congresses investigation and lying under oath and witness tampering. There are also serious questions about how the pardon power could be used for bribery for pardon schemes and public reporting last year ported the department of justice was investigating. There steps Congress Must explore to limit use of the pardon power. Some reforms would require a constitutional amendment. Hj resolution for its forth a number of strong proposals to curb selfdealing and invasion of account ability, including validating pardons issued for corrupt purposes. Even without a constitutional amendment, congress has the power to otherwise check the abuse of the pardon. The abuse of the power of pardon prevention act in the 116th congress which was included in the protecting democracy act rights oversight, transparency, and antiselfdealing intentions. We urge that it passes this congress. In the meantime, congress should investigate whether President Trumps pardons to his associates and others were otherwise properly granted and share what it learns with the american people. Congress should look at the idea of independent clemency boards to advise the president. This could illuminate biases and conflicts of interest inherent in the Current System which often relies on prosecutors at the Department Justice to serve as a check on their own prosecution. Members of the federal, seaboard should reflect our countries diversity and be representative of stakeholders inside and outside the criminal Justice System. Mr. Chairman, i believe democracy is resilient, but it takes work to ensure it lives up to its promise. It will continue to be stress tested. I urge the committee to take the steps necessary to protect the rule of land and the racial inequities in our legal system. The pardon power is one important part of what must be a conference of approach. Thank you, mr. Chairman and i look forward to the committees questions. Thank you very much. I appreciate your testimony in service to common cause. Our next witness is mr. Josh blackman, a professor of law at the south Texas College of law and houston, texas where he specializes in constitutional law the law in technology and the study of the United States Supreme Court. He is the author of 59 published articles, three books and numerous amicus briefs and is the author of a casebook on constitutional law. He received his jd magna come loud from george mason University School of law where he served as the editor of the george mason law review. He was a law clerk 40 honorable sandy bides for the sixth circuit and kim gibson of the District Court of the Western District of pennsylvania. You are recognized for five minutes. Thank you. Chairman cohen, Ranking Member johnson, thank you for inviting me to testify. Many miss Josh Blackman and im a constitutional law professor at the college of law in houston. People can say the courts have a monopoly on interpreting the constitution. They dont. Here, we will discuss the constitutional need to prevent abuse of the clemency power. In my brief opening remarks, i have three primary points. First, i will discuss the important purpose of the pardon power. Second, i will propose statutory regulations to the pardon power and third, i will talk of a proposed constitutional men meant that would limit residential clemency. People often view pardon power is more of a correction the court made an error by posing an unjust sentence or prosecutors pursued an unjust charge. As originally understood, clemency could serve a greater purpose. In federalist 74, alexander hamlett has a principal argument to the pardon power restoring the tranquility of the commonwealth. Pardons do not merely help individuals. President s issue pardons for broader public policy. President washington pardoned members of the rebellion. President jefferson pardon those convicted under the sedition act. After the civil war, former confederates were pardoned and these were unpopular in some quarters but the president uses pardon power to pursue the common good as he sought. This brings me to my second point. Last summer, this committee marked up the abuse of power my colleague was a lecturer this would alter the presidency such that he would secondguess his official actions were fear of prosecution. Congress should not empower federal prosecutors for the power of the criminal process to dictate what the Public Interest is. This committee is considering hr for, a proposed constitutional moment that would limit whom the president can pardon. I oppose this amendment. It attends intends to constitutionalize a single segment of the Public Interest what is and is not a pardon. No one has the Institutional Knowledge to declare a monopoly on what is in the common good. The president should be able to make important decisions with independence and dispatch. The president should have the latitude to issue pardons because the president should have the greatest latitude to pursue what he sees as the common good. It would limit the president s power to promote what hamilton referred to as the tranquility of the commonwealth. This eminent should not be adopted. Thank you for your time and i would be happy to answer any of your questions. Thank you. Appreciate your testimony. We would now like to recognize our next witness. Im going to ask you to help me with the pronunciation of your name. Our next witness i see him on i have seen him on television dozens of times and i never get his name right. Hes a clinical associate professor of history and director of the undergraduate policy major at New York University. He focuses on National Security and intelligence policy, international and president ial history. He served as a consultant to the 9 11 commission. He is the author of a december 2020 article entitled trumps pardons made the unimaginable real. He served as the founding director of the Richard Nixon president ial Library Museum and i would guess he is considered the top expert on president nixon. He received his ma with distinction from Johns Hopkins school of studies and a you are recognized for five minutes. I wish to thank the chair, the Ranking Member and numbers of the house judiciary 720 on the constitution rights of Civil Liberties for the privilege of testifying for you today. Concerns about the breadth of the president s come and see power and the desire to in some way reform it are not new to this moment in our history. It is not solely a product of these deeply partisan times. It is not an unprecedented kneejerk reaction to the conduct of our 45th president. According to fordham University Law schools constitutional clinic come on 41 separate occasions since 1974, members of congress from both parties have introduced legislative proposals designed in one way or the other to modify the president s use of executive clemency. Over half of these initiatives were introduced before the year 2001. In deed, 20 years ago almost to the day, this subcommittee held a similar hearing on the president ial pardon. That catalyst then was concern and disappointment on both sides of the aisle in how and to whom president clinton had issued 140 pardons and 36 commutations on his final day in the white house. Most notoriously, 12 mark rich, a fugitive facing criminal prosecution for tax evasion, his fort whose former wife was a donor to the clinton library. All of the panelist two decades ago cautioned this subcommittee not to amend the constitution, reflecting confidence the clinton pardon would be an aberration because of the criticism they had inspired. I very much doubt future president s will need to be restrained in their use of pardon power, one panelist argued, given the example of the final clinton grant. I quote our distinguished predecessors with utility. Who knows how well todays testimony will agent 20 years . I think i can say as a historian that history can only act as a deterrent to bad behavior if we all know it. The last few months, let alone the last 20 years suggest at least to this scholar we were far too optimistic about president ial pardon behavior 20 years ago. The clinton pardons should have led to concrete, federal corrective action. Today, i will leave most of the discussion to panelists who are lawyers. Perhaps my value is in using the statement to share some history indicating the perils of an unreformed clemency power and how a few president s, one of whom later became chief justice of the Supreme Court looked at the matter. The only president to join the Supreme Court after leaving office was William Howard taft. Therefore, he is a unique witness on working with the pardon from the perspective of 1600 pennsylvania avenue and that of the Supreme Court. He came back to federal service and wrote the duty involved in the pardon power is the most difficult one to perform because it is completely within the discretion of the executive and is lacking in rules of this size. The only rule it can follow is you shall not exercise it against the Public Interest. When he became chief justice, he had to look at a case that involved contempt of court. The question raised was can the pardon be used in a way to protect those whose actions threatened our very system of justice . He concluded yes, the pardon power is unfettered. But he added theres always the possibility of impeachment. As a deterrent. My belief in the need for corrective action is founded in what i learned about our nations 37th president , Richard Nixon, from publicly available materials when i was director. I will detail or discuss the cynicism and lawlessness attached to president nixons approach to the pardon power. Though he did not issued the pardons he dangled, it became not only part of article one past by your committee in a bipartisan manner but no doubt lead to perjury. Therefore, regardless of our 45th president , the nixon precedent alone is an argument for not allowing this power to be unrestrained, particularly in a partisan age where the tool of impeachment is no longer as much of a deterrent on that pardon as our founders who lived in a prepardon age assumed it would be. Thank you for your time. I welcome your question. Thank you. I appreciate you being with us and your lifes work. I will take the first round of questions. We have the five minute rule and i will recognize myself for five minutes. I would like to ask according to your testimony, President Trumps clemency grants created the appearance and reality of a two track Justice System one for the president s associates and another one for everyone else. The appearance of impropriety in the granting of clemency, why is it so dangerous to the rule of law generally . Thank you for the question. One of the challenges we see the actions of our president can have real impact and it can undermine peoples view of government. One of the things that i think distinguishes President Trumps pardons from those of his predecessors, including pardons granted to the wealthy and wellconnected, we saw other president s do this was the challenge around many things that happened during his term. He dangled pardons as a way to signal he would excuse anyone who refused to cooperate with the Mueller Investigation and reward anyone willing to lie to them. He did just that when he pardoned mike flynn, paul manafort, and roger stone and as recounted in the mueller report, trump criticized cooperation with the mueller team, stating slipping was not fair and almost ought to be outlawed that is a quote. President trump comment that it was brave that his former campaign chairman, paul manafort, did not flip and in response to a potential pardon, he said it was never discussed, but i would not take it off the table, why would i take off the table . President trumps lawyer, rudolph giuliani, raise the possibility of a pardon with an interview to the press telling the New York Daily News come when the whole thing is over, things might get cleaned up with some president ial pardons. These kinds of actions raise the specter that the president is above the law and can use Something Like a tool the president ial pardon in ways to help himself and that is not what the founders thought of when they were talking about the pardon. The power of the pardon is extensive, but it needs to be viewed in the context of other provisions of the constitution that requires the president to uphold the law and the constitution. This is not a tool to put his own worries about how he could be judged in the Mueller Investigation in terms of russian interference and the activity is undermining. Let me go to ms. Fredrickson. The appearance of a conflict of interest is important. Professor blackman said certain changes should not be constitutionalize. Because of a single conception of Public Interest. Arent there circumstances of people that would have an inherent conflict such as family members or other Close Associates that it would destroy the leaf in the integrity of the presidency and clemency process and equal justice for all . Rex i think that is absolutely true. There are certain classes of people for whom the grant of a pardon raises immediate questions about conflicts of interest, selfinterested miss, and lack of Public Interest. As chief Justice Marshall said in 1833, the pardon power is supposed to be an act of mercy. Thats the historical origins of it. Thats what the framers of the constitution believed it was designed to do. It was not the power to grant a get out of jail free card or solicit funds for Campaign Donations in exchange for a pardon. You mentioned in your testimony about someone who committed 25 Million Dollars worth of fraud and there was something a pardon of a man in florida who had done medicaid fraud and a man in another state who had done fraud. Could that in any way be seen as one of the statements about a difference of opinion about the Political Parties and how they achieve justice . Thats starting to get into the gray area. The committee in legislation was focused on quid pro quo pardons, which are certainly out of bounds. I think a constitutional amendment could clearly get at a more circumscribed view of the Public Interest. I dont understand how it could be in the Public Interest to pardon somebody who has ripped off the government and medicare for 75 million worth of funds by encouraging ill Senior Citizens to have more treatments than they needed. It is hard to contemplate how that could be in the Public Interest. Thank you. Might time is over. I would like to turn it over to Ranking Member, mr. Johnson. I have a few questions for professor blackman. I wanted to clarify something isnt it true the Supreme Court has long affirmed the president s pardon power is not subject to legislative control at all . Absolutely. Going back almost 160 years. The Supreme Court held there were basically no limitations to the pardon power and this hasnt been challenged and has been affirmed in other cases i think your reading of the case was correct. Thank you for clarifying that. I think its important for the full context of all of this. You publicly oppose house joint resolution for among other things it would evaluate invalidate a pardon for a corrupt purpose. Thats the language taken right out of the resolution. What is your understanding of that phrase and why is it so problematic . The chairman mentioned the word corrupt this is a word on which people disagree. Federal prosecutors often have difficulty proving what is a corrupt intent. I gave a politician a suitcase full of cash in exchange for a Public Service Public Service. That is corrupt but when we are talking about something a little more blurry, when someone says theres an unjust prosecution and in order to and unjust prosecution we need to end the pardon that could be a thing of value. I would be hesitant to push the boundaries of what is brought in a constitutional amendment. Its not the first time our democrat colleagues have used pardons adam schiff introduced the abuse of the pardon prevention act and this committee reviewed that last summer. Professor, you authored an article concluding the bill would have criminalized politics. Can you explain what the problem is there . The statute suffers from a similar problem it uses this word corrupt and allows federal prosecutors to decide when the president is acting in the Public Interest and when hes not. Corrupt is going to be the opposite of whatever is in the Public Interest i agree with the chairman that secret pardons are problematic and im going to go through that one but the James Madison said so 200 years ago i dont think that amendment is the right way to limit this authority. I was intrigued by what the professor testified to end the premise that there are some parts that are so agree just that would require some corrective action and he noted president clinton, who is probably the most notorious abuser in the modern era of the pardon power. Though there are some very egregious examples, does that mean we should change the constitution . I think i agree with the professors remarks. I think it should be after the fact, not for the fact. We have seen you can impeach a former president , so that is a new rule. The in advances problematic. Do i issue a pardon or two id not . Some federal prosecutor, the next Robert Mueller who tries to indict me, that is a Chilling Effect that i think is problematic. Let me ask you a mechanical question. What is the role of the department of justice and the recommendations they make . The doj is advisory. They make a recommendation but it is the president and president alone who decides whether to check yes or no on that pardon box. I yield back. Thanks to all the witnesses. Thank you, mr. Johnson. Next up is the new member from north carolina. You are recognized. Thank you so much, mr. Chairman and thanks to all the witnesses. This has been a fascinating warning and thank you for your perspective and scholarship. I have a couple of questions. Just to narrow down when there could ever be an abuse of the pardon power. The first question is can the president exercise of clemency ever violate our current laws prohibiting obstruction of justice or bribery . Thank you very much for that question. I was neglectful not saying to my colleagues from academia and advocacy what a pleasure it is to be here. Josh and i go way back. I first met josh when he was a young law clerk. We are good friends and it is good to be here. Your question is a very important one and i appreciate it. As i stated in my written testimony, there is wide consensus that certain kinds of pardons could be considered criminal acts. In the example professor blackman used, the bag of cash from the suitcase i like bag of cash better its a better visual. The bag of cash in exchange for a pardon most scholars, constitutional experts believe that is a criminal action and experts efforts to obstruct a judiciary proceeding, to suborned testimony of a witness for example. One of the things the legislation would do is clarify the statute to make it even more clear the bribery statute applies to the president and Vice President and then a pardon is a thing of value. Although the law is well understood to cover that, it would be prudent to make it more explicit. You have been a great job because you answered my second question in answering my first question. My next question goes to the issue of if the president does violate criminal law or obstruction of justice even in its current form, if it is amended, the department of justice has said a sitting president cannot be criminally prosecuted. Do you agree with that or do you believe it would have to wait until after the president completed his or her term . I dont tend to agree with that as a legal matter. It makes a certain amount of sense to postpone such an activity and it really depends on what the criminal act was. However, it is generally expected in cases of abusive pardon, it would happen after a presidency because most pardons, especially ones that are highly controversial like the mark rich pardons are issued even on the fading last moments of a presidency. Unless i think professor lachman seems to concede one can impeach a president , but one could certainly criminally prosecute. I want to be very clear with this last minute. After the president has left office, you see two avenues to pursue a president ial violation of the law for obstruction of justice. Congress could impeach, that is in the constitution after the grant of the pardon power but there also could be a criminal prosecution brought by the department of justice for a present for a federal prosecutor. Yes and i want to quote then senator and future attorney general, Jeff Sessions who is speaking about the mark rich pardons. He said he could not find a better example of quid pro quo bribery and it was a criminal act and many conservative scholars share that perspective. Thank you very much. Mr. Chairman, i yield back. Thank you. If i am being correct in my order, mr. Johnson, you can correct me i think mr. Jordan would be next or mr. Mcclintock. Who seeks recognition that . Lets go to mr. Jordan if he is ready. Thank you, mr. Chairman. Perhaps the most egregious recent example is the mueller proceeding of the prosecution of Michael Flynn, falsifying documents and withholding material evidence from the court and held interviews under false pretenses and operated in an entirely partisan manner. Just because the targets of the process where associates of the president doesnt make it any less egregious or less offensive or less necessary. There were a number of pardons issued by President Trump and his predecessors that i have cringed at. I think the importance of the pardon power in regulating justice to i cant believe the founders didnt give great consideration to human nature in assigning this power. Professor blackman, could you discuss in greater detail writing this provision to the constitution and how they might cover some of the objections we are today. The framers modeled the pardon power after their prerogative, the king which was basically almost absolute power. You can pardon only federal offenses and cannot pardon impeachment. There were debates whether congress had a role in the pardon power, whether Congress Must approve of a pardon and those rules were voted down. The framers viewed this power to be residing in a single person. He famously issued pardons to those who are in the wister rebellion. Washington pardoned the people in the whiskey rebellion to bring tranquility to the nation. It was controversial but it was important work. It leaves it to the president to decide how to pursue the common good. They must have foreseen, human nature being what it is, issuing a pardon for personal reasons, i cant believe they did not take that into consideration. There were debates in the Philadelphia Convention about the abuse of pardon power. George mason, who was invoked earlier was very much worried that the president would use his power to cover up his own crimes. James madison said the remedy in that case is impeachment that i think thats the right answer. The president could be convicted and removed from office and under prevailing whitten prevailing wisdom, he can be impeached after he leaves office. I dont like secret pardons. It is a public act and the president should be judged politically for his actions. I yield back. Thank you, mr. Mcclintock. Next is the distinguished delmon from georgia, the peach home of the Atlanta Airport and one of my Favorite Chicken restaurants, mr. Hank johnson. Is mr. Johnson there . Just trying to get an muted. I want to thank you, mr. Chairman, for holding this hearing and i look forward to serving on the subcommittee and participating in the important work of repairing our constitution. Like 70 parts of our constitution, the pardon has been repeatedly abused over the last four years. In the case of roger stone, paul manafort, Michael Flynn and 70 others, donald trump use the pardon power to shield himself and thus obstruct justice and help cronies rather then using that power to correct injustice and excess in the criminal Justice System. The abuse of the pardon power was egregious and unprecedented and shocks the conscious. Miss frederick ms. Fredrickson, why didnt the framers use limits on the pardon power and do you believe there should be limits on use of the pardon power . Thank you for that question and i unfortunately dont know the restaurant the chairman was referring to. I would like to find it next time i am in your district. Its hard to know from the discussions exactly the scope of their thoughts around the pardon power, but historically, it had not been considered for use outside this idea of being used as a benevolent power or as an act of grace. Although George Mason George mason did raise concerns he was persuaded by James Madison as was mentioned, this was novel territory in many ways because the king himself was not subject to prosecution in the normal court system and the idea of a self pardon and things like that were not things that had been contemplated. Then as professor blackman said, impeachment was seen as a possible approach to that kind of abuse of a pardon. Emphasizing why it is a legally correct position to be able to impeach a president after leaving office, otherwise you could never, in the theory that pardons cannot be prosecuted, you could never get after that kind of action. There was not really a contemplation of the kind of criminal action that might take place, that a pardon might be used for, which might mean the founders thought Everything Possible a president could do was exempt under his article to section two powers to pardon. Let me ask you this during the Trump Administration, we watched time and time again as President Trump shamelessly dangled the promise of a pardon to keep potential witnesses against him silent. To your knowledge, has any other president in history of this country so abuse the pardon power . As professor blackman has noted, there has been the possibility of secret pardons, so to some extent, we may not know. Certainly this past four years has raised significant concerns about the pardon being used as an obstructive device, as a way of obstructing justice, as a way of obstructing actual proceedings in court, which as i said earlier is a very widely held position, that those kinds of actions are crimes in and of themselves. Even if the president could pardon somebody for an initial act, the act of exchanging a pardon for supporting testimony would be a crime separate from the one that was pardoned by the president and could be subject to prosecution. Thank you. Did President Trumps abuse of the pardon power do damage to our democracy, and if so, how . Thank you. I think it has done damage to our democracy because it sends a message which President Trump talked about frequently, that he is somehow above the law. He talked about shooting someone in the street and no one doing a thing about it. Pardoning people who could testify against him shows an abuse of the pardon power and is one where americans want to see guardrails put on again and Common Sense Solutions to tackle some of these issues. Thank you. After President Trumps excessive excesses, how should congress act to curtail the abuse of the pardon power . I want to repeat that i am not a lawyer. I believe as chief justice taft wrote in grossman that there is a sense that there are checks and balances on the pardon and we should see the pardon within the framework im going beyond what the chief justice said. In the framework of our constitutional checks and balances, if we find evidence that a president has either ignored the restraints our founders hoped would be on him or her, we find those restraints were not sufficient to ask ourselves whether congress as part of its rules and responsibility in maintaining the system of checks and balances often take corrective action. I argued in my testimony not talking about donald trump, but talking about Richard Nixon if you have a body of evidence of corrupt intent available to everyone in this country president nixon perverted that idea to find a way to cover he looked for dissenters who had been indicted for planning to disrupt the 1972 republican convention. He said please keep them under indictment. This is on tape. He said we need them under indictment so after the election, we can let them go and pardon them and i will pardon the watergate burglars. Then his chief of staff said we dont have enough of these dissenters in jail. There were only six of them and there are seven watergate burglars. He said we could find reasons to arrest these dissenters and put them in jail so we have a balance. That is absolutely the most corrupt way of thinking of a pardon, but they thought this way. The question we need as americans to think about is whether the nixon team were an aberration . Where they the only corrupt people to ever be in the white house or was president nixon the only american president who saw this pardon as a get out of jail free card, as a way of manipulating the system for political gain. No matter where no matter what you think about donald trump, and i making this point here that there is enough evidence here to make the correction without even talking about the 46th president. My view of the 46th president is public. Ive written about my thoughts on his use of the pardon, but im not making an argument for corrective action on the basis of donald j. Trump. I say there is enough Historical Data to say the system wasnt working before him and now the outrage of those worried about the trump era should combine with the continuing outrage of people worried about the clinton era and you should Work Together and my preferred approach would be a constitutional amendment, but im not a lawyer. My sense here is the founders, god bless them, the founders made a few mistakes. In fact, they did not think te parties so they put together a system that was resulted in a high vote. Cleaning up wreckage after two republican president s and i think your testimony is quite hallucinating and i thank you for it elucidating. Thank you professor and thank you. About part about bipartisan approach. I recognize you next. I wanted to say thank you for recognizing. German is a good friend of we are all praying for his family. Secondly, i would like to just raise one issue that i think i have heard from one of the witnesses about to the extent. White wealthy friends, including war criminals, all of these actions under President Trump. The pardon power has been used in the very beginning for political purposes. We could go back to jefferson, we could go back to every president that is done something and i guess what im trying to say is that it comes across both lines by that kind of partisan attack on President Trump. I think their people that might take issue with it at a host of people advocating that President Trump and if the president did in fact help so that broadbrush stroke of a characterization should not characterize this hearing. I think the chairman is trying to put the objective to try to figure out what we bite want to do on the pardon power. There is certainly a legal gray area over whether it could be issued in secret. Whether someone could be prosecuted, they have to come forward and say they have been parted so in a way, is if a secret parted had been issued but i would like to speak to congressman point and say that certainly and adding to consideration Structural Reforms such as timing issues. I think professor are on the same wavelength, a party must absolutely be under the public eye. Other things that would be important is to structure the pardon attorney in such a way that there would be development that they would be transparent that is been proposed by legislation. To structure the pardon attorney so there would be more benevolent aspect to it. One of the rightful criticisms has been even in the pardon Attorneys Office, prosecutors are often very reluctant to move forward, worthwhile legitimate requests for commutation and pardon and having a more active presence of those who are seeking justice for those who have been, for all her incarceration or over sentencing in the criminal Justice System. You anticipated my line of questioning because what i was going to ask you next was about the role of the doj, one of the things that is been reported that the former president just ignored any recommendation and pretty much close their role and they were not involved in many of the parties that they did issue. Do you think that was part of the problem with a lot of the criticism that he got . A fix that we can make, to make sure that it is structured . I think it is a rifle criticism rightful criticism. Very limited role of the pardon attorney, which does serve is a in a advisory capacity. Very deserving people who were parted pardoned. That is unfortunate and again as i said, there been criticisms and all administrations of the pardon attorney not being attentive enough to the failures of our criminal Justice System and having a broader understanding of what types of individuals to move forward. It was mentioned how many pardons and commutations president obama issued, about 1700 but there were about 8000 petitions that were left underdressed. Rightfully so maybe, but i think it was because the pardon Attorneys Office needs to be more affirmatively directed towards recognizing the injustice of our criminal Justice System. I will go ahead and yield back. Thank you. I was not thinking they have the best broiled chicken. That is just ms. Fredricksons information. Thank you very much. I appreciate that. Coming to you from the beautiful state of minnesota where we are below zero. I appreciate the opportunity to take a couple minutes and mr. Johnson and mr. Mcclintock really covered some of the things that i wanted to ask but i wanted to take the opportunity to offer professor blackman on the issue of legislative involvement in the president ial pardon issue. It is something im interested in. Sure. Thank you so much and i appreciate the chance. I think the role of congress here is important. I think it should occur after that in terms of oversight. In the event that the unjust or inappropriate, the philly congress can investigate. What i would hesitate is to put limitations on who the president can issue a pardon to and how that pardon can be issued. A pardon issued shall be perpetually invalid it leaves that vague, when congress does not define a statute. The prosecutors will find a statute. Any of Congress Wants to actually prohibit some act, it is not something that is selfevident and that is not a term that everyone understands. People argue that of this body wants to put an amendment to prohibit certain actions, they should spell them out on what it means to be corrupt. I think bribery you can prosecute for bribery but theres a difference between bribery and corruption. Perhaps unpopular but i do not think it fits in the original conception. I will yield back. Thank you. Thank you and stay warm. We are trying. Our next congressman was five minutes. Freshmen from up the river, representative bush. We thank you chairman. It is without question that donald trump did away with all president ial norms. President trump of the pardon power will forever to be associated with nepotism and corruption. Under donald trump, an active emergency is given to wealthy donors, wellconnected friends, his cronies, and his white supremacist allies. Privilege afforded to the rich and powerful. Meanwhile, 14,000 applications are languishing in the department of justice. Dozens of people with no connections to the upper echelons of power are left with limited recourse, caged behind bars. The pardon power is not the problem. The problem is that it had not been used enough. Take for example byron miller appeared. He was convicted on federal drug charges at 28 years old. He is now 53 a, living with hypertension and asthma. His mother is now 80 and his father had cancer and his daughter was only six years old when he was sentenced. His absence is deeply felt and his family and in his community. These other kinds of person these are the kind of people the president is leaving behind. Having been sentenced to death would be serving much less time if any at all. The pardon power was created as a virtually unchecked power. This extraordinary power could be a powerful tool of freedom in the context of our punitive. The pardon power allows president s to put humanity over great. Over greed. Our country is in the midst of a National Reckoning of Racial Justice. For far too long, we have repressed, exploited, criminalized black and brown communities. We are in need of national healing. This requires transformational change and it is the kind of change that can be done with a stroke of a pen. You talk about the what role can it play and addressing Racial Disparities in the legal system . You are right that so many people who. Net who did not have access and this has happened with other president s to be clear, clinton and others that if they do not have somebody to help him help them a can be a real challenge. Congress can explore legislation to review a clemency board to review petitions and to advise the president , remove the process from the doj because there is a conflict when doj prosecutors reject the prosecutions that they have had. This could be a check and a new vehicle to go directly to the president. I think the president also could look to create and streamline the process for clemency, taking it out of the doj and i would encourage looking at several she was in the office of pardon attorney during the obama administration. They wanted to move 10,000 commutations. As they opened up the string for people to get applications and, focused on Racial Justice and excessive sentencing, they did not have the resources to have the staff because congress was blocking efforts to provide more resources so congress does play a role here. Second, setting up a board where you have independent people aching recommendations. People inside and outside of the criminal Justice System, i think that could be a real tool to move it for others. In your testimony, you know that racist policies like the war on drugs have disproportionately affected communities of color and you believe that the president ial administration should have the power to remedy these injustices. Why do you believe president s have been reluctant in this way . We have deep problems in our criminal Justice System that must be addressed and clemency is only one tool for Racial Justice. We have to be looking at all levels, sentencing guidelines, actually i do not think clemency should be limited to something that the president should do. It should be able to be done in court, and federal courts across the country so i think we need to look at a top to bottom reform. I yield my time. Thank you. Our next congressman to be recognized that he was in the nfl so long ago he never played against tom brady. Thank you so much for that. Good morning everyone. This is truly an honor to be with you. What im hoping to do to bring to this committee is by lifelong passion for criminal Justice Reform. Coming out of the judicial system and giving them a chance and when americas given that chance, a grandmother was given a life sentence it took 22 years and that was President Trump [indiscernible] the vast majority of the party criminal Justice Reform advocates. Liens heavy and it is a very high bar then go to the states and the recorder of the state legislator and theres a reason it has been done this way. Not to be changed by the passion of politics but by reinventing time that magnificent democracy and republic curse of this reason overtime. Theres been over 10,000 attempts to change our constitution and it is only happened 27 times. We the people are the ones who will make this happen. Even though this has been very educational, we can understand this process at our constitution , i can predict this amendment will not be the 28th so i do have a couple questions. What other limits in the constitution can be found and placed on the part of power . Thank you. Only two. The first is that a president can pardon state offenses and second the president cannot pardon impeachment spirit. Legislative involvement in the president power. The proposal having congress involved those are rejected a single individual to share that there is speed and efficiency. As you know we have a lot of people, does make some sense. This is something we go through every four to eight years. Can you characterize president obamas pardon that was a big deal for a while. How does that compare with the majority of trumps parts . I think it was quite controversial because wikileaks was involved but i think the bigger point. One side of the aisle that a different conception. President biden will look at his people to pardon that happens every four to eight feet years. Avenues for very different reasons. Im going to give up my time. We only have about 10 to 12 minutes and i love a second round. And i will have a second round. The history of pardons would be great. Let me thank you mr. Chairman for holding this Committee Hearing on this very important issue. It has been stated that the pardon power of the president is not in fact unlimited, although governed by the constitution. I have these thoughts as i present my issue and he backed off of january 6. The unforgettable attack of democracy where royalists laid siege to the u. S. Capitol rating the obscenity of the confederate battle flag while seeking to disrupt the joint meeting of congress. When are a majority of votes cast by president ial electors. Culminated a reign of corruption , criminal conduct, unethical behavior that is been unseen in america and we can our country and made it more divided. Chose to be a on this Constitutional Committee even as i say this less eat because i believe it is important to coddle, protect, nature nurture the constitution. I want to acknowledge my hometown ands blackman constituent blackman. And of course, the witness professor fredrickson. Let me raise this question to the professor as it relates to the history dealing with the importance of the clemency power and i might add to the fact, that not only are people languishing, i offer legislation before we had criminal Justice Reform and try to address the tens upon tens and hundreds upon hundreds of elderly africanamericans minority incarcerated in the federal system based upon the 70s and 80s so professor will you give us just a historical comment if you would on whether or not the president , past President Authority would even reach the point if you have reached to attempting to get pardon to those who perpetrated criminal acts under january 6 and would you as a historian, see any parallels between the post trump era and postnixon era in which congress potential abuses and they do so much for your leadership. Thank you congressman congresswoman. After she was acquitted, president johnson use the pardon power to pardon Jefferson Davis. It is very hard for me, i get emotional talking about reconstruction in the United States. I think we as a people and especially people of color, but we as a people very heavy burden because our country did not face the truth of the civil war and then swept it under the carpet. I believe the amnesty for Jefferson Davis help to create that burden and that was a pardon by president at the end of his term. I worried, i have to tell you in january, that we might see some pardons of the insurrectionists. Talking about nixon because not just i know about nixon, we have evidence, we have a shared body of data and all of you we can actually all listen, it is there. We do not yet have, but i want to have it, a shared body of data about the trump era. We have a lot of Public Information but theres a lot more to learn. I have a feeling that the second impeachment may have actually deterred President Trump from perhaps, pardoning some insurrectionists. I do not have evidence and i do not want to make the claim that he would have. President s have had the power to pardon insurrectionists, indeed as professor blackman would certainly know, the founders did talk about perhaps using the pardon to calm our political environment by issuing one element of our history that i think really needs to be addressed. Our founders did not think of a part of the era. They did not think in terms of Political Parties. That is one of the reason we have the 12th amendment is because it had to correct the electoral system. It had an imagined party and some of how they conceive of limits on the pardon, i think, are less powerful because they did not assume there would be a presence party in congress because they did not think in those terms. So what im suggesting is structural reform because the pardon is too powerful a tool now for a president in a way that the founders i do not think anticipated because of the changes a balance of power brought about in a partisan age. One more thing i mentioned, this is a little outside of my lane but since youve asked the question about reforms. I believe that the issue of the pardon is not just an issue for the white house, that power resides in the head of state and therefore, congress does have a role in expanding knowledge of the pardon to those who could benefit from petitions. The issue is not simply that the petitions get read by the people in the Justice Department and get sent to the white house, it is also that the people in the country who are incarcerated, who are deserving of mercy, know how to communicate their story to washington. In the case of donald trump, the very least kim kardashian, was able to provide some of those stories to the man with the pen. That is a very idiosyncratic way for people who have suffered from unfair incarceration to get their stories before our chief executives. As we think about limits on the president s misuse of the pardon and we should think of ways to broaden the publics access to the clemency. I would like to followup with the professor. In your study in the history of impeachment and our pardons, durham remember any secret pardons being revealed . No. But that issue arose in the last week of the Trump Administration, i was learning something. I want to make one other thing clear. Im worried, im worried about the nature of the climate of power. Professor blackman, he talked about dealing with the problem of power after the fact and im not sure that the history of the misuse of pardon suggest that that is enough because part of the problem inner circle can get away with it and that has an effect on our judicial and congressional system at that time. If people note that they will be protected, they may not be truthful with congress, they might not be truthful with the fbi or with a grand jury because of the notion that the climate is permissive. I think we have had that permissive climate in a number of presidencies. Ive documented and you can learn your about nixon and we are now having a debate over to the extent of the permissive climate any Trump Administration but it was certainly a permissive climate in the Clinton Administration. That permissive climate is a threat to our constitutional system and is a balance of power that the founders believed in and i really encourage congress to be robust in defending its prerogative in defending the importance of checks and balances. I think the pardon power is gotten out of whack. Let me ask you this. President obama, who issued 1700 something pardons, he had a system set up of justice that was stringent. Nine years of your sentence should not have made some drug, victimless drug crime one that should not be parted. Many of the presence you are aware of set up a system like that of whos to go throughout criteria and done it in a totally objective manner where they did not know the person. I really do not know the nuts and bolts history of the approach to the pardon attorney. I know that for many presidencies, unknown the case of nixon, ironically, a year before watergate, the white house was trying to create a better system for pardons. Not every nixon parted by the way was suspect but the permissive climate was problematic in that it undermined our judicial and congressional system. President s have tried to scrutinize this approach and let us keep in mind, the office of the pardon attorney, it was believed created in the late 19th century so yes, i think the issue, mr. Chairman, the issue is when president s go outside of the system and it is how often do they do that, when they say within the system, when they let the experts, the civil servants, provide them with data and recommendations and the attorney general plays a role, that is one thing but let me go outside the system. We have examples of president s doing that, i would argue, the evidence seems clear now at least that President Trump went outside of the system more than his predecessors but when they go outside the system, usually it produces a controversial pardon. That was the case with president clinton, with president nixon pardon, had you keep the president within the system . That is the president s prerogative that their ways to complicate your article which i thought was brilliant has several suggestions one of which was the timing and that doing a pardon for the end of the election. Did you consider a president in his first time is different from his second term. Do considered to give notice before Senate Election day and maybe 10 days before election day and have a notice to make sure that it is not a pardon and what other four forms other reforms that you suggested . I really believe in deterrence because i think we are all in perfect need, even the best of us. Faces temptation and so i think one of the great deterrence is public sanctions, and other were the public responding to what youre done. That is why a secret pardon concerns me because they do not know about it but that is why one president s do not just fear, i want president s to know that the public had a chance to give a verdict on their pardon so that is why i would very much like, former congressman franks idea that you set a structural deadline for the use of the pardon and you do it before an election. They cannot do it after the public has a chance to respond and the reason you would do it, the public has to know about these things they could figure out a way to require exposure, i think that is a good idea and the second thing is, although the self pardon there a lot of good argument on why should not be constitutional, and the nixon. They looked at this and they decided that it probably wasnt angie it would not do with the Supreme Court would do and they sent a message that even the appointees so i really believe. I believe that that sanction should be included, that you should not have cell pardons and finally, i worry about the president s ability under temptation, under partisan 10 tatian, to pardon those that are Political Associates and i think that should be looked at heart. Thank you professor and i know you have a hard cut. I have one last question. Ms. Fredrickson, the proposals that he has in his bill, the likelihood of mice destitute, the degree of difficulty is great and a statute is not. Are there any problems you have with yaz in his belt. In his bill . Thank you very much. Ive really enjoyed hearing you speak and im always a fan of historians, being the daughter of a historian, it is a very bored part of this conversation. Puts out some very important reforms and mention would have to do with transparency and showing that there is a broader dissemination as well as the prosecution that would be pardoned but also again, the clarification of the bribery statutes, which i think it is widely held that it already applied to the president. There is no question about that, beyond that, i think certainly that congress should be considering some of these reforms, they may impose greater challenges in terms of getting closer to the confines of the article to authority that the president has is circumscribing in a way that does not constitute a prosecution for a criminal offense which is already seen to be allowable, but actually telling the president what she could not pardon somebody, it is worth considering what it may be a little bit more challenging in terms of the constitutional limitations. Cigarette pardon and try to prohibit them by requiring some notice and public disclosure. Do you think that could be done statutorily . Oro is so broad it could be done . It a great area. It is worthwhile to move on the transparency issues, the transparency provisions that are included in congressman shifts bill but also to look at timing issues, it sets out a very important viewpoint of congresss role in understanding the Congress Plays a very Important Role in the interpretive process and sends a strong message. There is a possible constitutional challenge that i would endorse, it is certainly that would something occur. It would still marriage Going Forward and pursuing such reforms because they would certainly stimulate and administration to try to adhere to them and if the ministration did not, it would provoke its own clinical backlash. Thank you. Ive gone into overtime questions. Should because this hearing up . Just another five minutes or less. Thank you. Just quickly, i think it was a very productive discussion and i appreciate that and what everyone brought to this discussion and we fifth knowledge, depending on who the president has been but i do want to point out some things that a been said about President Trump this morning that hes been accused of not only one sense of going outside the system egregious violations of the pardon power but i just want to add, to put a bow on all of this, i mentioned in my opening, President Trump granted nearly pardons of we have heard a lot this morning how did use the pardon power but according to the research center, President Trump use the power less frequently than nearly every other president since the time of the 20th century good. I want to ask you would you agree if the aspect of clemency and parted at all of this that President Trump used what had done by him, at least by his subjective viewpoint, in a way to rectify unjust prosecutions . I think so. Jack johnson was a very famous africanamerican boxer. He was charged with violating an act, which is basically negligence law that state lines for immoral purposes he had a mistress who happen to be white and he was charged with basically having a relationship with a white woman. He spent some time in prison. This is more than a hundred years ago and this is a pardon that should have come sometime ago and it was one of the more commendable pardons that President Trump issued. Thank you for mentioning that i wanted to point out, my son is named jack johnson. He was convicted by an allwhite jury for that crime that you said in a course civil Rights Groups and advocates. It officially recognizes prosecution intolerance and it took until the time of President Trump to correct that historical injustice, another for a drugrelated offense and the point is what i want to conclude at the end is to make the point for history, for historians, lawyers and all of us who are involved in this, that there been controversial pardons by almost every president and there been some very noble things that have done and President Trump did the ladder and i want to know that for the record so i know we are over time, i will go the time and i appreciate that mr. Chairman. I want to comment. Sure. You are recognized. Thank you very much mr. Chairman and i will be brief on my comments. Thank you for giving us the truth of thought, looking to assess. I gave those opening remarks as you well know, that was the height of the discussion as to whether the president was in actuality, pardon those domestic terrorists, those insurrectionists and it was a frightening possibility. Ive lived for a long time on this committee, teaming number of individuals in the system are predominantly africanamerican or people of color. And people and families petition. It is a painful experience to see your neighbor incarcerated under the mandatory minimum and cannot be released or accessed. You gave an interesting point about the structure of this and the potential congress and also information and i think you about that i want to conclude by remarks my remarks and that reform is important, thank you for your Historical Perspective and i think we should continue to recognize that this document has lasted for a. Of time a period of time. I look forward and let me offer my sin these to my late colleague, congressman white, a congressman from texas for obviously that i know that he was dedicated to service and innovation and i know that his constituents. Thank you mr. Chairman and ideals back. Thank you and johnson has asked for a few minutes. For the permission of the committee. Mr. Johnson for last round of questioning. Thank you mr. Chairman. It would be fair to say that President Trump was rather stingy in his use of the pardon power compared to correct . Trump parted 143 and commuted 94 sentences while obama and his eight years pardoned 212 and commuted 1715 sentences. Would be fair to say that President Trump commuting sentences showed more mercy than President Trump who simply let a bunch of [no audio] folks off the hook, particularly in the wee hours of the morning on the night of january 19, he issued of his 237 pardons and commutations, he commuted more than 140 people in the wee hours of the morning, just 10 hours before his term ended, including steve, a potential witness it was under indictment. Build the wall scheme, professor blackman, what it be fair to say that it is best for the use it is best for the presidency depend on the office of the pardon attorney, rather than simply expensing pardons and commutations out of their back pockets like President Trump did . The pardon attorney makes recommendations and i actually agree with fredrickson and it may make sense to have people not in the doj making recommendations because very often the doj is doing the prosecutions. How many times did President Trump rely upon the office of pardon attorney before making any of his commutations . I do not know but i think it is very small. How many did president obama due under the office of i do not know. I think it was professor fredrickson, what is the use of the pardon power and how can we best protect our democracy from being undermined by the illicit use of the pardon power as we saw happen under the Trump Administration . Out to thank you for that question. It is a very important one and i would like to associate myself Karen Hobart Flynn who talked about the needs to have a wholesale reform of our criminal Justice System and its disparate impact, particularly black and brown people. The pardon power is one element of that, but having a system inside the Justice Department or a better practice as she suggested, a kind of reward that were not made up of all prosecutors, the real injustice that is been done and who sentences can be commuted or can be pardoned. That i think is very insufficient because there are so many people are prosecuted for lowlevel drug offenses who are already in prison for excessive time that we are likely to address all of those people through the pardon attorney processes or any kind of commutation or pardon board, but nonetheless i think it is very important to have a system to have the most significant cases to move forward and to be put forward in such a board or front of the pardon attorney for expedited process. Thank you and thank you mr. Chairman. I yield back. Thank you mr. Johnson did i was told by my staff that she has a question . Is that correct . Representative bush . Going once, going twice. This adjourned our hearing. I want to thank all of our witnesses without objection. Additional written questions for the witness or additional materials to the record i would like to specifically ask our witnesses, if you have thoughts about legislation, either amendments to the constitution, statutory changes, suggest them into your comments to the chair because we are going to try to draft something that is feasible and approving soviets suggestion with that being said, im done and in remembering of cumbersome right, congressman right, this is george. President biden speaks with reporters on the north lot about his Coronavirus Relief plan, then talks with governors and mayors about the plan in the oval office. After that . After that, todays white house briefing, featuring the mayors of detroit and miami who attended the meeting. Press secretary reporters questions, then alan dershowitz, law professor, who defended former President Trump and his first impeachment trial, reviews the Second Senate trial. 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