[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE CONSTITUTIONAL ROLE
OF THE PARDON POWER
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE
CONSTITUTION, CIVIL RIGHTS, AND CIVIL
LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
MARCH 27, 2019
__________
Serial No. 116-12
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-174 WASHINGTON : 2020
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana
ERIC SWALWELL, California Ranking Member
MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota
James Park, Chief Counsel
Paul Taylor, Minority Counsel deg.
C O N T E N T S
----------
MARCH 27, 2019
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 4
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 6
WITNESSES
Caroline Fredrickson, President, American Constitution Society
Oral Testimony............................................... 10
Prepared Testimony........................................... 12
Justin Florence, Legal Director, Protect Democracy
Oral Testimony............................................... 24
Prepared Testimony........................................... 26
James Pfiffner, University Professor, Schar School of Policy and
Government, George Mason University
Oral Testimony............................................... 38
Prepared Testimony........................................... 40
Andrew Kent, Professor of Law, Fordham University School of Law
Oral Testimony............................................... 50
Prepared Testimony........................................... 52
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Item for the record submitted by The Honorable Sheila Jackson
Lee, Subcommittee on the Constitution, Civil Rights, and Civil
Liberties
APPENDIX
Item for the record submitted by The Honorable Steve Cohen,
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties
Item for the record submitted by The Honorable Sheila Jackson
Lee, Subcommittee on the Constitution, Civil Rights, and Civil
Liberties
EXAMINING THE CONSTITUTIONAL ROLE OF THE PARDON POWER
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WEDNESDAY, MARCH 27, 2019
House of Representatives
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 2:06 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[chairman of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Dean,
Garcia, Escobar, Jackson Lee, Johnson, Jordan, Armstrong,
Reschenthaler, and Cline.
Staff Present: John Doty, Senior Advisor; Will Emmons,
Professional Staff Member, Constitution, Civil Rights, and
Civil Liberties; David Greengrass, Senior Counsel; Susan
Jensen, Parliamentarian/Senior Counsel; Matthew Morgan,
Counsel, Constitution, Civil Rights, and Civil Liberties; James
Park, Chief Counsel, Constitution, Civil Rights, and Civil
Liberties; Moh Sharma, Member Services and Outreach Advisor;
Madeline Strasser, Chief Clerk; Paul Taylor, Minority Counsel;
and Andrea Woodward, Minority Professional Staff Member.
Mr. Cohen. So we are starting. Thank you, each of you, for
coming here. The Committee on the Judiciary Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. Without objection, the chair is authorized to declare a
recess of the subcommittee at any time.
I welcome everyone to today's hearing on examining the
constitutional role of the pardon power, especially the young
students from Collegiate School.
I will now recognize myself for an opening statement.
The fundamental purpose of the pardon power is to ensure
fairness and proportionality in our criminal justice system and
to provide a check against miscarriages of justice. In essence,
mercy and justice.
In light of this purpose, we examine today questions about
the potential constitutional limits of that power, particularly
given how President Donald Trump has used or has implicitly
suggested that he may use this power.
Article II, section 2 of the Constitution outlines the
powers and responsibilities of the executive branch and
provides among other things, the President, quote, ``shall have
the power to grant reprieves and pardons for offenses against
the United States except in cases of impeachment,'' unquote.
The Constitution only places two textual constraints on the
pardon power, limiting its reach to Federal offenses only, and
barring its use in the case of impeachment. Nonetheless, the
exercise of the pardon power under certain circumstances raises
a number of unanswered constitutional legal questions, ergo
this hearing.
Chief among these questions are, one, whether the President
may pardon him or herself; two, whether other provisions of the
Constitution, while not an explicit restraint on the pardon
power, nonetheless place boundaries on its exercise; and,
three, whether issuing a pardon or offering to issue a pardon
can implicate criminal statutes prohibiting obstruction of
justice or bribery.
The discussion of these questions, which during normal
times may have been mostly on an only academic level, has taken
on greater importance during this Trump Presidency. For
example, President Trump, in the midst of the now-concluded
special counsel investigation, boldly asserted in a tweet, ``I
have the absolute right to,'' capitalize, ``PARDON myself,''
unquote.
I would note that today's hearing was scheduled before
Attorney General William Barr transmitted his letter
characterizing the principal findings of Special Counsel Robert
Mueller and his interpretations thereof.
The constitutional and legal issues that this hearing will
explore, however, may be profoundly relevant to evaluating one
of the counsel's questions of special counsel's--one of his
investigations. Did President Trump abuse the powers of his
office, including the pardon power to obstruct this and related
investigations into his conduct and the conduct of his
associates, and might he do so in similar circumstances in the
future?
I am sure my friends on the other side will argue that
Attorney General Barr's recent letter--well, I am not sure they
will. Some of them will say it totally exonerated President
Trump. Some of them will realize that it didn't say that. They
will say there was no collusion, and there apparently was
concurrence with Mr. Mueller there was no collusion.
But I would caution my colleagues against relying solely on
Mr. Barr's summary and to avoid making such a sweeping
pronouncement before seeing the actual report written by
Special Counsel Mueller. Mr. Barr only had a few hours to look
at the report. Mr. Mueller had 22 months to prepare it and
study it. And it was part of his work, and he said that it did
not exonerate the President.
The truth is that Mr. Barr's letter raised more questions
than it answered. Mr. Barr's letter revealed Special Counsel
Mueller pointedly noted that it did not exonerate the President
from obstruction of justice. In fact, according to Mr. Barr,
the special counsel's report set out, quote, ``evidence on both
sides of the question,'' unquote, which would include evidence
that supports the conclusion that the President obstructed
justice.
This is why it is imperative that Mr. Barr provide the
special counsel's report in its entirety to Congress, along
with any underlying evidence.
That is pretty much what has happened in other reports of
counsels. They have not drawn conclusions. They have left it to
the Congress to do that. Only in this case was there a
defensive back on the field who jumped in and intercepted the
ball before it was passed to Congress.
Frankly, whether or not President Trump colluded with the
Russian Government is irrelevant to the question of whether he
abused the powers of his office to obstruct the special
counsel's investigation. Special Counsel Mueller had a duty to
provide the full picture of Russian interference in the 2016
Presidential election.
President Trump cannot abuse the powers of his office to
obstruct a law enforcement investigation. Yet President Trump's
use of the pardon power over the last 2 years raises concerns
the President may have been willing to do just that to protect
himself and his political allies.
Since taking office, President Trump has issued pardons to
former Maricopa County Sheriff Joe Arpaio, former Chief of
Staff of Vice President Cheney, Mr. Scooter Libby, and
conservative author Dinesh D'Souza, as well as Jack Johnson.
Was there some other celebrity? Somebody that knew a celebrity.
She was from my district, in fact.
President Trump's pardoning of these individuals whose
circumstances and convictions closely track with those of his
former associates, including Michael Cohen, Paul Manafort,
Michael Flynn, raise the possibility the President was
signaling his willingness to issue pardons to discourage
cooperation with the special counsel investigation or the
ongoing investigations in the Southern District of New York.
In fact, this past Monday, a lawyer for former Trump
campaign foreign policy adviser George Papadopoulos, who pled
guilty to lying to the FBI about facts material to the special
counsel's investigation, revealed that she had petitioned the
White House for a pardon on behalf of her client before Special
Counsel Mueller announced the end of his investigation.
Pardoning Mr. Papadopoulos would not be an act of mercy,
nor would the pardoning of Mr. Flynn necessarily or Mr.
Manafort or Mr. Gates or the rest. Instead, it would only send
the message the President of the United States believes it is
acceptable to lie to Federal law enforcement officials.
While I have concerns about many of the ways President
Trump has used the pardon power, his exercise of the power has
been commendable in some instances--yes, that goes back to the
celebrity's friend and my constituent, Alice Marie Johnson--
decades of the failed war on drugs, and thousands and thousands
of Federal prisoners like her, whose clemency petitions merit
the President's attention as well.
It is my hope that going forward, President Trump will use
his power to grant more meritorious clemency petitions. The sad
thing is, he has really only issued two that were meritorious,
except for Jack Johnson, which was deceased. So that was done
not to relieve somebody of a sentence, but really for President
Trump's sense of justice from 80 years ago, or 70 years ago. It
was done posthumously.
But Ms. Alice Marie Johnson and a gentleman from Nashville
were given pardons and they deserved them, I think. But there
are thousands and thousands of other people who deserve them,
too, and they haven't gotten them.
And from what I understand, the President has asked for a
list of celebrities who should be pardoned, not a list of poor
African Americans who have been the subject of an unfair and
unduly-oppressive-on-minorities drug war, like Ms. Johnson, who
came to the attention of Ms. Kardashian--yes, a name I can't
remember, Kardashian, celebrity connection.
Anyway, I thank the witnesses for agreeing to appear today,
and I look forward to their testimony.
And I now recognize the ranking member of the subcommittee,
the gentleman from Shreveport, Louisiana, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
Thank you to the witnesses for being here.
A little historical context. Article II, section 2, clause
1, as you all know, of the Constitution provides that the
President shall have power to grant reprieves and pardons for
offenses against the United States except in cases of
impeachment.
There are claims of abuse of the pardon power by the
current President, and I am sure we will hear that here today.
But regarding the claims of abuse of the pardon power
generally, I would like to just at the outset here discuss
briefly how executive dispensation has been employed more
recently, and contrast it with how the Framers understood its
appropriate constitutional application should be.
In 2014, President Obama used the pardon power to commute
the sentences of more than 1,700 Federal drug offenders,
resulting in their release from prison without an assessment of
the individual merits of each of those cases. In the short time
since then, at least four of those individuals we know have
been sent back to prison for resuming their criminal
activities.
Further, that same year, President Obama unilaterally
created a program, which he simply announced on television,
that suspended immigration laws for over four million people
who are in this country illegally, something that is not
allowed under the immigration laws that were passed by
Congress. As The Washington Post's own fact-checker wrote,
President Obama was asked, quote, ``about specific actions that
ended deportations of a subset of illegal immigrants.
Previously the President said that was not possible, using
evocative language that he is not a king or the emperor.
Apparently he has changed his mind,'' unquote.
And, indeed, a week after he announced his immigration law
suspension program, President Obama announced, in his own
words, quote, ``the fact that I just took an action to change
the law,'' unquote.
In this last example, President Obama didn't have to act in
violation of the law or in an unconstitutional manner. He had a
legal and constitutional tool that would have accomplished the
same end, namely, the pardon power. Indeed, President George
Washington and his Treasury Secretary, Alexander Hamilton, are
good examples of how the Framers understood the pardon power
could be used to grant reprieves from enforcement of the law.
President Washington made clear that executive authority to
refrain from enforcement of the law extended only to narrow,
case-by-case determinations. For example, under his Presidency,
there was widespread violation of the Federal whiskey tax laws,
as there is widespread violation of the immigration laws today.
But President Washington insisted that he had a duty to
enforce the laws to the extent practicable, issuing a
proclamation in which he referred to, quote, ``the particular
duty of the executive to take care that the laws be faithfully
executed,'' unquote.
A delegation that President Washington sent to Pennsylvania
to discuss noncompliance with the Federal whiskey tax with
representatives of that State even reported that, quote, ``One
of the conferees then inquired whether the President could not
suspend the execution of the excise acts until the meeting of
Congress,'' but he was interrupted by others who objected.
In the end, with the Nation's ranks of whiskey tax avoiders
growing larger and larger, President Washington's response was
not to suspend the whiskey tax laws for them, but rather to
selectively exercise his constitutional pardon power to grant
amnesty for some past crimes, conditional on the agreement by
the recipients of the pardon to obey the law in the future.
Indeed, the person charged with enforcing the Federal
whiskey tax was Secretary of the Treasury Alexander Hamilton,
who years earlier, during the ratification debates over the
adoption of the U.S. Constitution, wrote Federalist Paper No.
74, that, quote, ``In seasons of insurrection or rebellion,
there are often critical moments when a welltimed offer
of pardon to the insurgents or rebels may restore the
tranquility of the commonwealth,'' unquote.
As at least one of the witnesses here today will testify,
the power to pardon is one of the least limited powers granted
to the President in the Constitution. The only limitations in
the plain wording are that pardons are limited to offenses
against the United States, that is, they cannot include pardons
of civil or State cases, and that they can't affect an
impeachment process, which is always available if supported by
the popular will.
As one of our witnesses today has written, the pardon power
has been and will remain a powerful constitutional tool of the
President. Its use has the potential to achieve much good for
the polity or to increase political conflict. Only the wisdom
of the President can ensure its appropriate use.
With that, I look forward to hearing from all our witnesses
here today. I thank you again. And I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
Before I recognize the chair for his statement, I do want
to mention that President Obama, in my opinion, didn't give
enough pardons, or commutations, to people with drug cases. He
investigated all those people too thoroughly. And if 4 out of
1,700 went back to jail, that is 0.3 percent of those issued.
That is a pretty good score, and that means 1,696 people got
justice.
Mr. Chairman, you are recognized.
Chairman Nadler. I thank the gentleman. I thank the
chairman, and I thank him for that comment.
Today's long overdue hearing examines the constitutional
role and the limits of the Presidential pardon power.
Presidents are vested by the Constitution with the awesome
power to absolve individuals of Federal crimes. This power
should be exercised carefully and responsibly.
Unfortunately, President Trump has ignored the hard work of
the career professionals in the Department of Justice Office of
the Pardon Attorney, who carefully scrutinize pardon
applications and who make recommendations for clemency to the
President.
Instead, his exercise of the pardon power has created the
perception that pardons are a political tool, a publicity stunt
to curry favor with the public, and a favor to bestow on the
well-connected.
Worse, there are some who believe that President Trump may
be signaling the promise of a pardon to those with potentially
damaging information about him, to encourage them not to
cooperate with investigators.
It is helpful to review this appalling record when it comes
to issuing pardons.
In August 2017, he pardoned former Maricopa County,
Arizona, Sheriff Joe Arpaio, who had been convicted of criminal
contempt for defying a Federal court order forbidding him and
his law enforcement officers from racially profiling Latinos.
Sheriff Arpaio was both a political supporter of the
President's and a hero to the President's base. But he was
pardoned despite the fact that he systematically violated the
constitutional rights of helpless people in defiance of a court
order.
The following April, President Trump pardoned Scooter
Libby, former Vice President Dick Cheney's former chief of
staff, who was convicted of perjury and obstruction of justice
in relation to the FBI's probe into the leaking of covert CIA
officer Valerie Plame's identity.
In June of last year, he pardoned noted conservative author
and filmmaker Dinesh D'Souza, who pled guilty to a felony
campaign finance violation in 2014.
These pardons raise red flags for several reasons. First,
none of the individuals I mentioned appear to have had their
applications recommended or even reviewed by the Department of
Justice's Office of the Pardon Attorney.
Since the Civil War, the Justice Department has been
responsible for administering petitions for executive clemency
and preparing recommendations for the White House. While the
President is not constitutionally bound to abide by this
process, neither President Trump nor the Department have
adequately explained why these individuals' applications have
not undergone the usual review.
President Trump appears to have cut the pardon attorney out
of his decisionmaking regarding pardons entirely. As a result,
not only has he made questionable decisions about who he has
chosen to pardon, there may be many worthy candidates for
clemency who have gone ignored. And where he has granted a
pardon to a worthy candidate, it has generally only been when a
celebrity friend such as Kim Kardashian West or Sylvester
Stallone has lobbied on their behalf.
There are also serious questions about whether President
Trump has considered or attempted to use the powers of his
office to shield himself or his political allies from legal
jeopardy. Most troubling, there have been media reports that
Michael Cohen, the President's former personal attorney, may
have been offered the promise of a pardon by lawyers
representing President Trump in hopes of convincing him not to
reveal damaging information about the President.
There is also a concern the President may have signaled the
possibility of granting pardons to certain other individuals,
including his former national security advisor, Michael Flynn,
and his former campaign manager, Paul Manafort, as a means of
discouraging them from cooperating with investigators.
Concerns have also been raised about pardoning Mr. Libby
for the same crimes several of President Trump's associates are
accused of committing. He may have been signaling to those
being targeted by investigators that a pardon may be in the
offing if they refuse to cooperate with law enforcement.
It is these concerns that prompted my request of several
individuals, including former White House counsel Don McGahn,
for any documents relating to possible pardons, as part of this
committee's investigations into potential obstruction of
justice, public corruption, and abuses of power by President
Trump.
This is one reason that we must see the entire report by
Special Counsel Robert Mueller and all of the underlying
evidence so that this committee can make an independent
judgment about whether the President has obstructed justice by
abusing his pardon power to protect himself or his political
allies.
Contrary to what the President may believe, under any
reasonable interpretation of the Constitution, the President
does not have an absolute right to pardon himself or to use the
pardon power in a corrupt manner.
It is true that there are few textual restraints on the
President's pardon authority, and there is little direct
guidance from the Supreme Court on this issue, as well as on
other issues that an exercise of the pardon power may raise.
The President's pardon authority, however, cannot be read
in isolation from the rest of the Constitution's text. For
example, Article II of the Constitution also contains the Take
Care Clause, which requires the President to, quote, ``take
care that the laws be faithfully executed,'' unquote; and the
mandatory Presidential oath, which requires the President to
swear to, quote, ``faithfully execute the Office of
President.''
I find persuasive the argument that the Framers intended
this language to impose upon the President a duty to abstain
from self-interested conduct and abuses of power, or as one of
our witnesses here today terms it, a duty of faithful
execution. To interpret the Constitution otherwise would be to
render any President into an elected tyrant, who could wield
the powers of the office to serve his or her personal needs at
the expense of the needs of the Nation.
And let me say one other thing. There are those who argue
that since the pardon power is granted to the President, he can
use it completely as he sees fit and that misuse could not be
an obstruction of justice or an abuse of power.
If you think a moment, this cannot be right. Let's assume
that a President pardoned someone in return for a check,
personal check, of $50,000. I don't think anyone would think
that because he had the unquestioned right to issue a pardon,
that that wouldn't be a crime, that that wouldn't be an abuse
of power, certainly, and probably an obstruction of justice.
Given the Framers' preoccupation with preventing arbitrary
and abusive uses of government power, it is simply illogical to
interpret the text of the Constitution to permit such an
expansive view of the executive power.
I thank Chairman Cohen for holding this very important
hearing, and I look forward to hearing the testimony of our
witnesses here today. I yield back the balance of my time.
Mr. Cohen. Thank you, Mr. Chairman.
Mr. Collins, does he have a statement he wants to enter?
No? Okay.
With that, we want to welcome our witnesses and thank you
for participating in today's hearing. Your written statement
will be entered into the record in its entirety. I ask you to
summarize your testimony to 5 minutes. And you will see the
lights. Green is go, yellow is warning, and red is over. To
help you stay within that limit, there are the lighting
switches.
Before proceeding, I remind each of you that your written
and oral statements made to the committee within this hearing
are subject to penalty of perjury, pursuant to 18 USC 1001,
which could result in the imposition of a fine or imprisonment
for up to 5 years, or both.
Our first witness is Caroline Fredrickson. Ms. Fredrickson
is the president of the American Constitution Society for Law
and Policy, a national nonprofit legal organization with
increasing influence on legal and constitutional issues. Prior
to working at ACS, she served as director of the Washington
legislative office of the ACLU, and as general counsel and
legal director of NARAL Pro-Choice America.
She had an extensive career serving in government as a
special assistant to the President for legislative affairs
during the Clinton administration, chief of staff to Senator
Maria Cantwell, and as deputy chief of staff and counsel for
Senator Daschle. Also has served as a law clerk for the
Honorable James Oakes of the U.S. Court of Appeals for the
Second Circuit. She received her J.D. from Columbia
University--which I guess is in the chairman's district, maybe.
Columbia in your district, Jerry?
Chairman Nadler. Absolutely.
Mr. Cohen. Where she was a Harlan Fiske Stone scholar and
served as editor of the Columbia Law Review.
Chairman Nadler. And he lived in my district, too.
Mr. Cohen. We ended up getting a lot of people from
Chairman Nadler's district, a lot of scholars.
She received her B.A. in Russian and Eastern European
studies summa cum laude from a place that is an adjunct of Mr.
Nadler's district, Yale University.
Ms. Fredrickson, you are recognized for 5 minutes.
Mr. Johnson. Just one moment, point of parliamentary
inquiry. Mr. Chairman, I noticed we are not going to administer
the oral oath before their testimony. Is that right?
Mr. Cohen. That is exactly right.
Mr. Johnson. And the reason is because we don't want to
include the phrase ``so help me God'' at the end?
Mr. Cohen. No, it is because it is totally unnecessary. The
statutes say that the witnesses are subject to perjury and a
penalty if they lie to the committee or tell a falsehood. So
why have them stand up and swear to something that they are
bound to? They are also not going to commit any other crimes
they may commit here.
Chairman Nadler. Mr. Chairman.
Mr. Cohen. They will be subject to it whether they swear to
it or not.
Chairman Nadler. Mr. Chairman.
Mr. Cohen. Yes, sir, I yield.
Chairman Nadler. Thank you for yielding.
I just want to comment here that swearing in witnesses may
be relevant when you are talking about facts: Did this happen?
Did that happen? Did you do this? Did you hear about that? When
the witnesses are here to give their opinions, to have them
swear that they are about to give their opinions as they, in
fact, believe them, always seems a little strange to me.
Mr. Johnson. Well, with due respect to Chairman Nadler, I
do intend to ask the witnesses about facts, and I would like to
know that they are going to offer--I assume that they will--but
they will offer truthful statements and understand that they
are under the penalty of perjury if they don't. It is an
important tradition that dates back to the founding of our
country, and since we are talking about the history of the
Constitution and our great traditions here, I don't think it is
one we should abandon today.
Chairman Nadler. Mr. Chairman.
Mr. Cohen. Yes, Mr. Nadler.
Chairman Nadler. I would point out that lying to Congress,
whether under oath or not, is a crime.
Mr. Cohen. And it is not a tradition. I was here in 2007 to
2010, and nobody was sworn in. That is something that started
with the Republicans, and the votes have changed, and votes
make a difference.
You are recognized, Ms. Fredrickson.
STATEMENTS OF CAROLINE FREDRICKSON, PRESIDENT, AMERICAN
CONSTITUTION SOCIETY; JUSTIN FLORENCE, LEGAL DIRECTOR, PROTECT
DEMOCRACY; JAMES PFIFFNER, UNIVERSITY PROFESSOR, SCHAR SCHOOL
OF POLICY AND GOVERNMENT, GEORGE MASON UNIVERSITY; AND ANDREW
KENT, PROFESSOR OF LAW, FORDHAM UNIVERSITY SCHOOL OF LAW
STATEMENT OF CAROLINE FREDRICKSON
Ms. Fredrickson. Thank you so much. To Mr. Cohen, Chairman
Cohen, and Chairman Nadler, and the other members who are here,
I am very grateful to have the opportunity to speak before you
in these hearings on the President's pardon power. I am
Caroline Fredrickson. I am the president of the American
Constitution Society.
Despite Saturday's letter from Attorney General Barr
interpreting the Mueller report, there are still many ongoing
investigations of the President, his family, his businesses,
his foundation, and there is still a broad concern that there
could be a misuse of the Presidential pardon. So it is helpful
to review the history of the pardon power, its limitations, and
how our Founding Fathers foresaw its possible misuse could
threaten the country.
The pardon power was intended to be a benevolent power.
President George Washington, himself, issued the first pardon
in what was decidedly an effort to use it in a benevolent
manner. On November 2 of 1795, he worked to end our Nation's
earliest uprising, the Whiskey Rebellion, using the power of
the pardon to help heal the fabric of a young Nation.
Among the characteristics of the pardon power is that it is
limited to Federal crimes. State cases are beyond its reach, as
are Federal civil cases. And although there are important
limits on an unfettered prosecution after a pardon, most
notably the Fifth Amendment's double jeopardy clause, these
limitations are not absolute.
For instance, the Supreme Court has repeatedly confirmed
that the Dual Sovereignty Doctrine means that the Fifth
Amendment's protection against double jeopardy permits
prosecution of State offenses, even if the individual being
prosecuted has already received a Presidential pardon, for a
Federal offense criminalizing the same conduct.
Similarly, double jeopardy laws don't preclude Federal
civil lawsuits brought by private parties or the Federal
Government.
Third, it should be readily apparent to all that the pardon
power cannot be used to obstruct justice. The Articles of
Impeachment drafted by the House Judiciary Committee against
President Nixon provide precedent for finding the issuance of
an obstructive pardon grounds for impeachment.
Under those articles, it was stated that Nixon intended to,
quote, interfere with the conduct of investigations and
endeavored to, quote, cause prospective defendants to expect
favored treatment through the use of the pardon power.
An obstructive pardon can also expose the President to new
criminal liability for obstruction of justice, witness
tampering, and possibly even bribery for which he could be
indicted after he or she leaves office, and some, or many,
believe even beforehand.
Despite this history, now Attorney General Bill Barr
theorized in his June 2018 memo that when the President
exercises one of the quote, ``discretionary powers,'' such as
the power of appointment, removal, or pardon, that act cannot
be the basis for a subsequent criminal prosecution, such as for
obstruction.
The Barr memo is puzzling for a number of reasons, but for
present purposes what is most striking is how utterly devoid of
legal support Mr. Barr's conclusions are.
Lastly, it is important to note that a self-pardon is also
constitutionally suspect. Past Presidents, most notably
President Nixon, have asked if they could use the pardon power
to save themselves, only to be told by counsel that, no man--no
one may be a judge in his own case. And there is every reason
to think that that opinion was and remains correct.
The pardon power is an awesome power. When used as
intended, it is a powerful tool for justice. However, it can
also be a tool of greed, oppression, and perversion if used
inappropriately. In fact, in 1788, at the Virginia ratifying
convention, George Mason said that the President, quote,
``ought not to have the power of pardoning, because he may
frequently pardon crimes which were advised by himself. If he
has the power of granting pardons before indictment or
conviction, may he not stop inquiry and prevent detection?''
James Madison, immediately understanding Mason's concerns,
replied that he, too, recognized that there was a danger to
giving the President the pardon power. But if the pardon power
were to be used improperly and to fall into unscrupulous hands,
he said, the Constitution had a remedy--impeachment.
Thank you.
[The statement of Ms. Fredrickson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Fredrickson.
Our next witness is Mr. Justin Florence, and he is legal
director of Protect Democracy and a lecturer at Harvard Law
School. Previously served as special assistant and assistant
counsel to the President during the Obama administration,
senior counsel in the Senate Judiciary Committee to Senator
Sheldon Whitehouse. He was law clerk for the Honorable Diana
Gribbons Motz of the U.S. Court of Appeals of the Fourth
Circuit. J.D. from Yale.
Do you all know each other?
Ms. Fredrickson. Yes.
Mr. Cohen. Boola boola. Where he served as executive editor
of the Yale Law Journal. He received an M.A. in history from
Harvard and a B.A. in history from Yale.
Mr. Florence, you are recognized for 5 minutes.
STATEMENT OF JUSTIN FLORENCE
Mr. Florence. Mr. Chairman, members of the committee, thank
you for calling this important hearing and for inviting me to
testify.
My organization, Protect Democracy, is a nonpartisan,
nonprofit organization with the mission of preventing the
United States from declining into a more authoritarian form of
government.
I appreciate the opportunity to testify today on the role
of the pardon power in our constitutional system and some
limits that the Constitution places on that power. This
committee's oversight can ensure that this power is used to
provide mercy and justice, as the Framers intended, and is not
abused for corrupt or unlawful means.
Limits on the pardon power begin with the clause's text,
which excludes pardons in cases of impeachment and does not
extend to pardons of State or civil offenses. In addition, the
pardon power cannot be used in ways that violate other parts of
the Constitution.
As an example, it is well accepted that the pardon power
does not extend to future crimes, for under our Constitution, a
President can't license law-breaking ahead of time.
Or consider another scenario. It would violate the Equal
Protection Clause and the First Amendment for a President to
pardon all people of a certain religion of a particular
offense, but nobody else.
In my testimony today, I will focus on three specific
constraints on this power.
First, because in our country nobody is above the law, both
self-pardons and similar self-protective pardons are
unconstitutional.
Second, the President can't issue or dangle pardons in ways
that violate generally applicable criminal laws, such as those
prohibiting bribery and obstruction of justice.
And third, the President may not issue a pardon that
prevents courts from enforcing people's constitutional rights.
Let me begin with the prohibition on self and self-
protective pardons, which comes from the Constitution's
requirement that the President faithfully execute the duties of
his office and faithfully enforce the laws passed by Congress.
The Founders believed this constitutional command was so
important that they included it in the Constitution twice, in
the Take Care Clause and again in the Oath of Office. These
faithful execution clauses bar the President from betraying the
public good to serve his own interests. That means he can't
pardon himself, or pardon somebody else to protect himself,
rather than act to protect the American people's interest in
the faithful execution of the laws.
The Office of Legal Counsel in the Justice Department
traditionally interprets executive powers quite broadly, but
even OLC says that self-pardons go too far. In an opinion
written days before President Nixon resigned, OLC opined that
allowing the President to pardon himself would violate the
fundamental rule that no one may be a judge in his own case.
A self-pardon would reflect the sort of power wielded by a
king, not an American President. And the same is true for a
similarly functioning self-protective pardon.
Turning to a second limit, the pardon power can't be used
in a way that, on its own, violates our criminal laws. Consider
a situation in which a Justice Department official takes a
bribe in order to place a name on a list of proposed pardons.
As then Senator Sessions said in the context of President
Clinton's pardon of Marc Rich, based on the law of bribery, if
a person takes a thing of value for himself or for another
person that influences their decision in a matter of their
official capacity, that could be a criminal offense.
And the same goes for obstruction of justice. If a Federal
official, including the President, issues or even offers a
pardon to impede an investigation for a corrupt or wrongful
purpose, that could run afoul of the law.
Finally, I would like to highlight a third limit on the
pardon power. The President may not use a pardon to prevent
Federal courts from protecting people's constitutional rights.
An essential component of the court's power to protect the
Constitution is the contempt power, the ability to punish those
who violate court orders. The Supreme Court has held that the
court's role in our constitutional system hinges on their
ability to prosecute contempt, without relying on the executive
branch.
If the President could use the pardon power to block courts
from protecting constitutional rights, we would no longer be a
Nation of laws but, instead, subject to the whims of one man.
Mr. Chairman, thank you again for holding this important
hearing. The pardon power is a noble provision of the
Constitution, but like any power, it can be abused. And so I
would urge the committee to continue conducting oversight in
this area.
I look forward to the committee's questions.
[The statement of Mr. Florence follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Mr. James Pfiffner, university professor at the Schar
School of Policy and Government at George Mason University,
previously named and mentioned in the testimony of Mr.
Florence, George Mason. His major areas of expertise are the
U.S. Presidency, American national government, the national
security policymaking process, and public management.
He previously served as special assistant in the Director's
office at the Office of Personnel Management and has taught at
California State University, Fullerton, and University of
California, Riverside. He has three degrees, a B.A., an M.A.,
and a Ph.D. in political science, from the University of
Wisconsin in Madison.
You are recognized for 5 minutes, sir.
STATEMENT OF JAMES PFIFFNER
Mr. Pfiffner. Chairman Cohen, Ranking Member Johnson,
distinguished members of the committee, thank you very much for
inviting me here to talk about the President's constitutional
power to pardon.
The text of the Constitution is pretty straightforward.
Unlike most other powers of the President, it is unchecked,
there is no check, virtually no check from the other branches
of government.
The original purposes of the pardon power were two. First,
to benefit an individual as an act of mercy, maybe justice
erred, there was a problem, and also to temper justice by
mercy.
But the second, and probably more important role, is that
of the public good. And James Wilson and Alexander Hamilton
mentioned those things, for instance, to get the testimony of
somebody who has committed a crime, to restore tranquility
after unrest.
But perhaps the broadest formulation of the pardon power is
by President Ford, when he said he granted a full, free, and
absolute pardon onto Richard Nixon for all offenses against the
United States which he, Richard Nixon, has committed, or may
have committed, or taken part in during the period when he was
President.
In terms of the limits of the pardon power, as has been
mentioned, first, impeachment, of course, and second, that it
must be a Federal offense, of course, as the Supreme Court has
heard arguments on Gamble v. The United States where the Dual
Sovereignty Doctrine has been challenged.
Can the pardon power be abused by the President? And my
suggestion is, yes. And it is derived from the English history,
medieval kings, who arbitrarily often enriched themselves or
promised pardon in favor for military service.
Now, George Mason, the patron saint of my university, as
mentioned before, was against the pardon power. He was an anti-
Federalist. He thought that Presidents would abuse it, and he
said Presidents ought not to have the power of pardoning: If he
has the power of granting pardons before indictment or
conviction, may he not stop inquiry and prevent detection of
his own crimes.
But, of course, Hamilton and Madison won that argument and
they said, if that is a problem, impeachment is the remedy for
any abuse of the pardon power.
Now, over U.S. history, over 30,000 pardons have been made
by Presidents, but most of them have gone through the Office of
Pardon Attorney in the Department of Justice. The most
contentious ones, a colleague, Jeffrey Crouch at American
University, has written a book and several articles arguing
that President George H.W. Bush, who pardoned some of the Iran-
Contra figures, President Clinton's pardons of Roger Clinton
and fugitive Marc Rich, President George W. Bush's commutation
of Scooter Libby's 30-month prison sentence for perjury and
obstruction of justice were potentially abuses. But he also
mentioned President Trump and argued that his use of the pardon
power was potentially for political purposes.
But whether any of these instances is an abuse of the
pardon power I think is a matter of political judgment and not
of law or the Constitution. The only remedies for bad
Presidents or judgments about pardons are political and not
constitutional.
On the other hand, a pardon might be legally questionable
if there is, as been mentioned, an explicit quid pro quo, a
pardon in exchange for silence or perjury. But, of course, it
would depend on the corrupt intent and the nexus, which is, of
course, difficult to prove. That is why President Ford was so
careful about insisting that there was no prior agreement with
him and President Nixon before he pardoned him.
Finally, just a few points about Presidential self-pardons.
The self-pardon was never mentioned in the Constitution,
constitutional convention, the Federalist Papers. No President
has attempted it. No Supreme Court has opined on it. No
President has publicly considered it except, of course,
President Trump, has been quoted: ``I have the absolute power
to pardon myself.''
The arguments in favor of self-pardons are that they are
not explicitly forbidden in the Constitution, but, of course,
the Constitution doesn't explicitly forbid a whole lot of other
things.
The arguments against, as has been mentioned in Federalist
10, James Madison said that no man should be allowed to be a
judge in his own cause. And Chief Justice John Marshall in
Marbury v. Madison said that one of the core principles of the
U.S. justice system is that the government of the United States
has been emphatically determined a government of laws and not
of men. A self-pardon would allow the President to put himself
above the law.
In writing the Constitution, the Framers didn't mention a
whole lot of other things, and it is arguable that they didn't
even consider this as a possibility.
And perhaps most importantly, a self-pardon would vitiate
the provision of the Constitution that allows for prosecution
after removal from office. If there were self-pardons, that
part of the Constitution would be meaningless.
Thank you.
[The statement of Mr. Pfiffner follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
And now for the testimony of Mr. Andrew Kent.
Collegiate School students, listen well.
Mr. Kent is a professor of law at Fordham Law School, also
in the chairman's district, where he has taught since 2007.
Teaches courses in con law, Federal courts, foreign relations,
professional responsibility, and national security law. He
served as a visiting professor at Columbia University School of
Law.
He was a law clerk for the Honorable Robert A. Katzmann of
the U.S. Court of Appeals for the Second Circuit and for the
Honorable Carol Amon of the U.S. District Court for the Eastern
District of New York. He received his J.D. from Yale Law School
and his A.B. in social studies magna cum laude from Harvard
College.
Professor Kent is also the father of at least two up-and-
coming young scholars.
You are recognized for 5 minutes.
STATEMENT OF ANDREW KENT
Mr. Kent. Chairman Cohen, Ranking Member Johnson, members
of the committee, thank you very much for having me here today
to talk about some difficult and somewhat novel constitutional
questions about the use of the pardon power. My written
testimony covers a number of topics, but I thought I would
focus primarily on the question of whether a President could
pardon him or herself.
My conclusion is that, although this is a difficult
question, I think the best answer is no, for some of the same
reasons as my fellow panelists, but also for reasons of some
recent scholarship that I have been working on with my two
Fordham Law colleagues, Ethan Leib and Jed Shugerman.
We are in the process of publishing a paper in the Harvard
Law Review that for the first time really explores in detail
where some extremely important language in Article II of the
Constitution comes from, the so-called Take Care Clause, which
binds a President to take care that the laws be faithfully
executed, and the Presidential Oath, which must be taken before
assuming the office, in which the President is required to
swear or affirm that he or she will faithfully execute the
Office of the President.
There have been a lot of claims by courts and commentators
over the years about what these clauses mean, but really nobody
has figured out where they came from. And we did, and found
that the roots of these clauses go back at least a thousand
years in English law. Certainly by the time of Magna Carta it
was well established that many different kinds of executive
officers had to take oaths and sometimes were also bound by
commands as well to faithfully execute their offices.
We found that these clauses over time developed three
meanings, what we call kind of the three core principles of
faithful execution for executive office holders.
They are, first, that the office holder must act
diligently, honestly, carefully, in good faith, and impartially
when they execute the law or their office.
Second, the officer has a duty not to misuse an office's
funds or take unauthorized profits from the office.
And third, the command of faithful execution is a promise
not to act ultra vires, beyond the jurisdiction or scope of
one's office.
And one of our interesting findings was that it was not
only in some very powerful offices in Anglo-American history
where these commands were imposed, offices like colonial
governors, governors of the American States post-independence,
senior officials under the Articles of Confederation
government, but also there were many lowly offices that had
these commands as well, offices like the vestryman of a church,
a weigher of bricks, or an inspector of agricultural products.
So it was both high and low that were commanded to faithfully
execute their offices.
And as we note, these commands of faithful execution and
their meanings actually look quite a bit like what today we
call fiduciary duties that a fiduciary has. And at the core
here thus is a duty to act in good faith, for the public
interest, not for reasons of self-dealing, self-protection,
corruption, bad faith, or other personal, nonpublic reasons.
So we think that it is most plausible to view the faithful
execution commands and promises that bind the President as
limits on the pardon power. And we note in the paper, I wanted
to stress today also, that it would not be strange or unusual
to find that our Constitution was limiting or restraining a
potentially dangerous executive power in ways that try to shape
it so that it acts in favor of the public interest, rather than
private interests.
In fact, the Framers, although they took some of the powers
of the English monarch, very much did not want to reproduce the
British monarchy because of so many ills and problems that
monarchy had revealed.
So in addition to a new requirement--the English monarch
did not have to swear to faithfully execute the laws--in
addition to that new requirement, the Constitution also does a
number of other things to prevent corruption and self-dealing
that were experienced with monarchs but that we very much did
not want to have here.
So, for example, the President is barred from having any
titles of nobility, to stop foreign governments from being able
to dangle some kind of promise or title or lands that might
influence the President. The President is barred from taking
emoluments of office besides those that are allowed by law. The
President is given a salary, in contrast to the English king,
who tried to monetize the monarchy. I could go on and on.
But the core idea is that the interpretation we give to
these commands of faithful execution is very consistent with
many provisions of Article II of the Constitution that seek to
restrain the President not to be someone who abuses their
office for personal ends. And for those reasons, we think that
a self-pardon would be utterly inconsistent with the idea of
faithfully executing the office.
[The statement of Mr. Kent follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor Kent. I appreciate your
testimony.
We will now proceed with the 5-minute rule of questions,
and I will begin by recognizing myself for 5 minutes.
Firstly, I had introduced H.J. Res. 8 on the first day of
this Congress, January 3, 2019, with several cosponsors--Mr.
Raskin and Mr. Lieu and Ms. Jayapal from this committee--to
change the pardon power.
And what we proposed was that the President shall not have
the power, he shall not have the power to pardon himself or
herself, the President's brother, sister, brother-in-law,
sister-in-law, spouse, parent, child, grandchild, or spouse of
the President's grandchild, the President's aunt, uncle,
nephew, niece, or the spouse of the President's nephew or
niece, or the President's first or second cousin, the spouse of
the President's first or second cousin, the President's mother-
in-law, father-in-law, son-in-law, daughter-in-law, or any
current or former member of the administration, or anyone who
worked on the President's Presidential campaign as a paid
employee.
Ms. Fredrickson, do you think the pardon power needs to be
amended? Mr. Madison said, yes, the remedy is impeachment. But
most pardons have been issued on the last day. Impeachment is
kind of not a very effective prohibition.
Ms. Fredrickson.
Ms. Fredrickson. Well, thank you, Mr. Chairman, for your
question. I have to say I haven't looked deeply into your
legislation.
I think, on balance, the pardon power has been exercised
with restraint, perhaps too much restraint, by Presidents, as
you mentioned about President Obama. And when it is done
correctly and with mercy, when benevolence, as it was intended,
it is an incredible tool for justice.
So I think I would have to spend some time thinking more
deeply about whether or not it should be amended. I think there
are already some very significant limitations on its use when
it is, as I mentioned in my testimony, used inappropriately or
with corrupt intent.
So I think the strength of the Constitution is that that is
already implicit. So I would just leave it there.
Mr. Cohen. Well, we went to a pretty good length of family
members. And when you get to a family member, it is kind of--it
is almost self-dealing.
Mr. Florence, you mentioned self-protecting pardons. What
exactly would a self-protecting pardon be?
Mr. Florence. So a self-protective pardon is a pardon that
has the same purpose and effect as a self-pardon in that what
it is doing is allowing the President to place himself beyond
the reach of the law.
So, for example, if a President says to a witness in an
investigation, ``Go ahead, change your story, don't answer the
questions, don't cooperate because there is a pardon coming for
you,'' in a way that leads the witness to do that, that
terminates the investigation or interferes with the
investigation, and that is an investigation that involves the
President, himself, or the President's campaign or business
organization or family members, that self-protective pardon
that is dangled or issued, even though it is not to the
President himself, it has the same purpose and the same effect
of placing the President above the law.
And as we have all testified, there is one kind of central
tenet of our Constitution, which is the rule of law applies to
everybody, that nobody is above the law, that nobody can be a
judge in their own case. And so if the President can use that
pardon power, to make himself a judge in his own case, to place
himself above the law, that violates a core principle of our
Constitution.
Mr. Cohen. And Ms. Fredrickson said that our pardon powers
work pretty well, and it has worked pretty well, I guess. But
because it has doesn't mean that it will. And we never had a
President who said, I can pardon myself. I mean, nobody ever
thought about it. I am sure George Washington and Mr. Mason and
Mr. Madison never thought what happened could happen in 2018.
Now that we have seen that that is a possibility, that a
President has such an expansive perspective of his own power
and his potential own criminal liability, don't you think we
ought to change the pardon power, Mr. Florence, in some ways?
Mr. Florence. You know, I think one option would be to
amend the Constitution to make that crystal clear, but I think
there are other ways to prevent abuse of the pardon power,
including a self-pardon.
And this committee has a really important role to play in
that. It is doing that by holding this hearing and by
conducting oversight into Presidents who try and use the pardon
power in that way.
As we have all, I think, also said----
Mr. Cohen. How would you go ahead enforcing it? Let's
assume a President pardoned himself. You would have to have an
Attorney General to bring the action, would you not? Who would
have standing to go to court to question that pardon?
Mr. Florence. You know, courts are one actor in the system
that can decide how to enforce things, but Congress can offer
its own remedies through oversight, through political
accountability, through other forms of accountability. And
prosecutors within the executive branch can decide to take
various law-enforcement actions. And so you could ultimately
have, either through Congress or the executive branch, this
question teed up for a court.
I think what we have all said here is that you have got to
read the pardon clause alongside the rest of Article II,
alongside the Constitution, and that there are provisions there
now, the Take Care Clause, the oath, that prevent this type of
self-interested abusive pardon that places somebody above the
law. And so we shouldn't lose sight of that even if we look to
be a little bit more clear going forward in how this works.
Mr. Cohen. Professor Kent, do you have any thoughts on
amending the Constitution to prevent abuses?
Mr. Kent. Well, it is always difficult, and given the two-
thirds requirement, perhaps impossible in the present
circumstances.
I mean, I guess the one thing I would note is, I do think
Congress could have some legislative power. I think there is
some possibility of doing things without amending the
Constitution. And I think certainly one principle would be that
Congress could legislatively prohibit uses of the pardon power
that are unconstitutional in themselves.
So if those of us on the panel here today are correct, that
a Presidential self-pardon is unconstitutional, then I don't
think a constitutional amendment would be required for Congress
to say so.
Mr. Cohen. But don't you think--while I agree with you, and
I understand your legal logic, it is not in the law, it is not
in the Constitution. And can we pass a statute that basically
limits what is an unrestricted power to pardon based on a legal
theory that three brilliant professors agree on?
Mr. Kent. Yeah, you could. And if the President tried to do
so and he were later criminally charged, as Mr. Florence said,
that would be a proper case that the judiciary could resolve.
And I do agree with some of the things that have been said.
The President's pardon power is extraordinarily broad and it is
subject to very few limitations. I just think it is not subject
to zero limitations. So there would, I think, be some very hard
constitutional questions about Congress doing anything beyond
preventing or legislating against a self-pardon.
Once you move out beyond the President himself, you do get
into areas where the executive branch would have some very
strong constitutional arguments that that is improper. But
again, also, there are other forms of checking besides
statutory prohibitions.
Mr. Cohen. Thank you.
And I know I am over my time, but I am the chair.
Mr. Pfiffner, do you have any thoughts on this?
Mr. Pfiffner. It seems to me that Congress--it is clear
that Congress can't limit this straightforward power of the
President. It might be reasonable to say that there is no self-
pardons, and it might be reasonable to say the President
shouldn't pardon his relatives and friends or so forth, but I
don't think that that would be constitutionally enforceable.
So I think the argument against it depends on the
Constitution itself, not on what Congress may do. Nevertheless,
it might be reasonable for Congress to pass a resolution saying
that, but I don't think it would have constitutional effect.
Mr. Cohen. Thank you, sir.
And I now recognize the distinguished ranking member, Mr.
Mike Johnson. So help you God.
Mr. Johnson. Thank you, Mr. Chairman. So help me God.
Ms. Fredrickson, 5 days ago you authored a press release
for your organization which stated, quote, ``The question isn't
whether members of the Trump campaign conspired with Russia to
sway the 2016 elections. We already know they did,'' unquote.
But just 2 days later, a summary of the report of the
special counsel was released which contains the following quote
from the report itself: ``The investigation did not establish
that members of the Trump campaign conspired or coordinated
with the Russian Government in its election interference
activities,'' unquote.
Since you previously wrote that we already know that
members of the Trump campaign so conspired, what reasons do you
have to doubt the validity of the opposite conclusion as
reached by the special counsel with all his vast resources,
time, and unlimited discretion?
Ms. Fredrickson. Well, thank you for that question. I
appreciate it.
So I would say--funny thing was that my piece came out 2
days before the report--but I would also say very importantly--
or not the report, but the interpretation--that as you said, as
you quoted from Mr. Barr's letter, he said that Mr. Mueller's
investigation did not establish conspiracy.
However, what we don't know is what the standard of proof
was and what the evidence was, which was clearly--there was
some evidence. And we know that the Trump--various members of
his campaign, his campaign manager and many others, had direct
contacts with Russians. There were over 100 contacts between
Russians and Trump associates. They changed the Republican
platform on Ukraine. Paul Manafort was convicted of not
disclosing his relationship with Russian-associated people in
Ukraine, to lobby on their behalf.
And so, you know, I think you can draw the conclusion
pretty clearly that there were relationships between the
Russians and the Trump campaign, and nothing that you have said
makes that any less true.
Mr. Johnson. But just to be clear for the record, you don't
have any additional special insight into all these facts than
Mr. Mueller does, Attorney General Barr, Deputy Attorney
General Rosenstein. Are they incompetent in their jobs? Do they
not know how to interpret that evidence?
Do you have some special information about that that none
of us--the rest of us know?
Ms. Fredrickson. I think there is a very large amount of
information about contacts between the Russians and The Trump
Organization. And as I have said, I can read to you the number
of people who have been indicted, who have pled guilty, who
have been convicted because of relationships with the Russians.
Mr. Johnson. We all know that. But we also know the outcome
of the special counsel's report.
Let me ask. You also wrote an op-ed that appeared in the
New York Times on March 22. It was entitled, ``We Don't Need to
Read the Mueller Report.''
Can you please explain to us why you think we don't need to
read the Mueller report?
Ms. Fredrickson. First I should say, unfortunately, I
didn't get to choose the title. However, if you actually read
what the piece said, you will see it says clearly the report
needs to be provided to the public and to Congress.
However, even if this administration puts up a struggle
over providing what Congress and the American public are
entitled to, nonetheless, because of the variety of information
that has come forward, and even from looking at the indictments
and the process of prosecution that has gone forward under the
special counsel, but also in the Southern District of New York
and the Eastern District of New York--now we have Cy Vance in
New York, the attorney general of New York, many others legal
actors who are investigating this President. We have a lot of
information that leads us, I think, to be very disappointed in
how this President has behaved as President. The indications of
corruption----
Mr. Johnson. I reclaim my time. I am running out of time.
Look, you also, October 19, 2017----
Mr. Cohen. I will give you some more time.
Mr. Johnson. He is the chairman. He can do whatever he
wants.
You signed a letter to Members of Congress that was
entitled, quote, ``Benchmarks for Ongoing Congressional
Investigations''--oh, for Mr. Florence. Mr. Florence, sorry,
you did this one.
All right. Let me grill you a little bit.
Okay. You wrote this letter, ``Benchmarks for Ongoing
Congressional Investigations into Russian Interference in U.S.
Elections and Related Matters,'' okay, and in the letter you
recommended that each committee should issue a public interim
investigation or report or public update that includes the
following elements: How many full-time and part-time staff are
currently assigned to the investigation, making up how many
full-time employee slots. The training or experience of the
assigned staff in conducting investigations. How much money was
spent on the investigation in total and since the last report.
How many hearings have been held, etcetera, etcetera.
My question is, do you think that same report entailing
that same kind of information should be made by the special
counsel's office?
Mr. Florence. So I think it is important for the special
counsel's office to provide this committee with all kinds of
information, including how it went about conducting its
investigation, what it learned from that investigation, what
evidence it uncovered, what conclusions it drew from that. And
so I think as much information as this committee wants to
request and the special counsel can provide would be useful to
this committee's oversight.
Mr. Johnson. But just for the record, of course, the
Attorney General's summary of the special counsel report
included that--in the investigation they spent $25 million, by
the way, but they also employed 19 lawyers, 40 FBI agents,
2,800 subpoenas executed, 500 search warrants, 230 orders of
communication records, 50 orders authorizing the use of pen
registers, 13 requests to foreign governments for evidence, and
interviewed approximately 500 witnesses.
In your professional opinion, would you say that is
thorough, that is a thorough investigation?
Mr. Florence. From everything I know, the special counsel's
investigation was thorough. And I think what is so important is
for both this committee, for Congress as a whole, and for the
public to learn what the special counsel found. A four-page
summary letter can't do justice to all of that work.
And so I appreciate that this committee has asked for those
materials. And I think once the American public can see them,
they can see how much work the special counsel did and what he
truly found from doing that.
Mr. Johnson. I appreciate it.
I am out of time, and I am not chairman, so I can't
elaborate further.
Mr. Cohen. You did go 1 minute and 12 seconds over. I don't
want you to get used to that, because we don't want you to have
that prerogative.
Mr. Raskin, you are recognized.
Mr. Raskin. Thank you.
I just want to tell my distinguished friend from Louisiana,
if the Mueller investigation cost $25 million, I am looking at
a headline here saying that Trump's travel to Mar-a-Lago cost
taxpayers more than $64 million. So that is just flying and the
Secret Service and so on.
You know, in that interesting numerical recitation of the
number of lawyers in the Mueller investigation, which was, of
course, appointed by a Republican Attorney General, and Mueller
is a Republican, and so on, the lawyers and the depositions,
and so on, one thing we didn't get was the number of pages in
the Mueller report. And I am wondering how many pages are in
that. Is it like 800 pages or 200 pages? Because we have got
the right to read that.
But let me get back over to our distinguished witnesses
today. You guys make me miss academia. And thank you very much
for your thoughtful testimony, all four of you.
First of all, just to be straight, does everybody on the
panel agree that the President cannot sell a pardon and put it
up on eBay and take the highest bidder? Does everybody agree
the President cannot sell a pardon?
Ms. Fredrickson.
Ms. Fredrickson. Yes.
Mr. Raskin. Mr. Florence.?
Mr. Florence. Yes.
Mr. Pfiffner. Not on eBay.
Mr. Raskin. I take that to be yes.
And, Mr. Kent.
Mr. Kent. Yes.
Mr. Raskin. Okay. And let's go back the other way.
Does everybody agree the President cannot pardon himself
because of the Madisonian principle that no man may be a judge
in his own cause because it will impair his integrity and
corrupt his judgment?
Mr. Kent. And for other reasons, yes.
Mr. Raskin. And for other reasons, yes.
Mr. Pfiffner.
Mr. Pfiffner. That is a compelling argument.
Mr. Raskin. Yes.
Mr. Florence.
Mr. Florence. Yes, I agree.
Mr. Raskin. Okay.
Ms. Fredrickson. Yes.
Mr. Raskin. Ms. Fredrickson.
Okay. So everything is very clean.
This is what I don't miss about academia. What do you do if
the President does pardon himself? You all say it is
unconstitutional and think that is the end of the matter. But
let's say the President issues a pardon to himself.
Now, are you just asserting at that point it is legally
null and void, that if the President is later prosecuted that a
court should disregard it? Or are you just saying the President
can still be impeached and convicted for it?
Well, what does it mean if a President does try to pardon
himself?
And, perhaps, Ms. Fredrickson, let me start with you.
Ms. Fredrickson. Well, I think both of those things could
be possible, that it is null and void and that he also can be
prosecuted. Certainly can be impeached.
Mr. Raskin. Okay. Did anybody else want to weigh in on
this?
Mr. Pfiffner. I think John Marshall said that the Supreme
Court can say what the law is. So it seems to me that that
constitutional decision could be decided by the Supreme Court.
Mr. Raskin. Gotcha.
Mr. Kent, let me ask you a question. I am fascinated by
your research on the history of the Take Care Clause. And I
know that you are here to talk about the pardon power. But it
may be illuminating as to Attorney General Barr's 19-page
single-spaced memorandum making the argument that the President
cannot, as a matter of law, ever be subject to an obstruction
of justice prosecution because he controls the law enforcement
machinery.
This is the insurgent, now unitary executive theory of
Presidential power essentially that the President has complete
control over the executive branch. So even if he were to
interfere, say, corruptly or in a self-interested way to try to
squelch an investigation or kill an investigation of a friend
like Michael Flynn, that could not be obstruction of justice.
How does that relate to your historical investigation about
the meaning of the Take Care Clause?
Mr. Kent. Well, certainly it would not be a good faith,
public spirited execution of the office to have engaged in any
of the acts that you describe. And so I think there is a strong
argument that they are unconstitutional and void. But
certainly----
Mr. Raskin. You would say not only could it be prosecuted,
but you are saying it itself could be interpreted as
unconstitutional, totally outside of the Constitution?
Mr. Kent. I do. And I also agree with the many critics of
Attorney General Barr's fairly aggressive theory of
Presidential nonaccountability.
I think certainly Presidential acts can, even though they
are within the scope of Article II powers to make, can be
treated as bribery by a prosecutor, can be treated as
obstruction of justice by a prosecutor.
There is not something magic about doing something pursuant
to an Article II power that means you are entirely immunized
from criminal liability.
Mr. Raskin. Okay.
Ms. Fredrickson, let me come back to you since the door was
opened to getting your thoughts on the current crisis this
week.
Let me ask you, by what right did Attorney General Barr
decide to--by what right did he take to himself to decide the
question of whether or not the President had obstructed
justice? Did he have the right to do that?
Ms. Fredrickson. I think that is the big question and the
big concern. It seems inappropriate that he placed himself in
the role of deciding something that Mr. Mueller left undecided
and, more appropriately, left to this committee, to this
subcommittee----
Mr. Raskin. Did he decide it on the basis that he had
spelled out in that 19-page memorandum, which is the President
can never be guilty of obstructing justice in the executive
branch of government because he controls the executive branch
of government?
Ms. Fredrickson. Well, it is certainly possible. Very
little is spelled out. I think it is an important reason for
Congress to hear from Mr. Barr directly, as well as from Mr.
Mueller, who apparently was not consulted in the drafting of
this interpretation of his report.
So I think those are very important questions because it is
incumbent on Congress to have an answer to whether--to what Mr.
Mueller actually found.
Mr. Raskin. Let me ask one final question, and, perhaps,
Mr. Florence, you could answer this.
For many decades now, I think the President has followed
the formal pardon process. There is a pardon attorney in the
Department of Justice. There is a formal process for
petitioning it goes through. There is a recommendation and so
on. This President, of course, with the Sylvester Stallone and
so on has gone completely outside of that and has just written
letters.
Are there any formal requirements for a pardon? Or, really,
could the President pardon somebody by a tweet and, like, watch
something on TV, get upset about it, and say, ``I am going to
pardon this person''?
Mr. Florence. So I think as a formal matter a warrant has
to issue from the White House.
As to the process, I think that process is helpful in
protecting against some of the violations we have talked about
and maintaining safeguards. I don't think that process is
constitutionally required. And so if the President wants to sit
down and write on his pad, ``I grant a pardon,'' he is
constitutionally permitted to follow that----
Mr. Raskin. Well, don't fight the hypothetical. I am
talking about a tweet here. I am not talking about a legal pad.
Mr. Florence. I think a tweet would not have legal effect
in executing a pardon.
Mr. Johnson. You mean a tweet is not anticipated by the
Constitution?
Mr. Cohen. Thank you, Mr. Raskin.
Mr. Raskin. I yield back. Thank you, Mr. Chairman, for your
indulgence.
Mr. Cohen. I now recognize the gentleman from Virginia who
made a marvelous maiden speech in this committee, and now he
has got high hopes for a second one.
Mr. Cline. Thank you, Mr. Chairman.
I want to follow up a little bit on the previous
questioners now that the door has been opened, so to speak.
Ms. Fredrickson, you stated that there is a lot of
information out there about the relationships, as you put it,
between the Trump administration and Russia.
Are you aware of any actual evidence to support an
allegation of collusion between the Trump administration and
the Trump campaign and Russia?
Ms. Fredrickson. As I mentioned, it has been well
documented that there were over 100 contacts between Russians
and various members of the Trump campaign, the Trump family,
and up to the Trump administration.
Mr. Cline. Where has it been documented?
Ms. Fredrickson. If you have been reading the newspaper or
watching television, it has been all over the place.
Mr. Cline. Publicly available?
Ms. Fredrickson. Publicly available.
Mr. Cline. Okay. So given that the special counsel issued
more than 2,800 subpoenas, executed nearly 500 search warrants,
interviewed approximately 500 witnesses, issued approximately
50 orders authorizing use of pen registers, do you believe that
he had this information as well?
Ms. Fredrickson. I think it is really important to read how
it was phrased by the Attorney General, which is that it was
not established. He didn't say there was no evidence. There is
clearly some evidence. And I think it is important that
Congress examine it, because even if--and one has to actually
see the full Mueller report to understand how he evaluated the
evidence.
But even if there wasn't enough to show beyond a reasonable
doubt, one assumes that is the standard that he was using,
although perhaps not the appropriate standard for an
indictment, one has to ask: Was there enough for Congress to
find highly problematic relationships between the variety of
players representing, either officially or in some private
capacity, the Russian Government, with the Trump campaign, with
the Trump administration?
I think those are all very important questions for Congress
to examine.
Mr. Cline. So with regard to conspiracy--I am sorry--the
issue of whether or not there was obstruction of justice, the
question is, does the Department have the authority to
determine whether the evidence rises to the level of a
chargeable offense?
Ms. Fredrickson. Well, it is very interesting, because I
think, as Attorney General Holder has stated, in his 6 years in
running the Justice Department he never had one of his
prosecutors present him with a case and not come to a
conclusion.
I think one has to look historically at the other times
when there has been an obstruction of justice inquiry into
Presidential behavior, and in those particular circumstances
that has been presented to Congress to resolve. And I think one
can intuit that that is perhaps what Mr. Mueller was thinking
and that, nonetheless, the Attorney General put himself in the
place of Congress and made that decision.
Mr. Cline. So it does not--that power does not reside with
the Department of Justice to determine whether an offense?
Ms. Fredrickson. I didn't say that. But traditionally it
has been with the prosecutor who has been leading the
investigation to recommend a decision. And in this case Mr.
Mueller didn't, again, consistent with past obstruction of
justice inquiries into Presidential behavior and certainly
quite unprecedented for the Attorney General to substitute
himself in this way.
Mr. Cline. Unprecedented for the Attorney General to
determine that there is not enough evidence to proceed with the
charging of an obstruction of justice charge?
Ms. Fredrickson. As Attorney General Holder said, he never
experienced such a situation in his 6 years running the Justice
Department when there was no recommendation from a prosecutor
to conclude an investigation. And Mr. Mueller said very
directly, and that was actually quoted by the Attorney General,
that the President was not exonerated.
Mr. Cline. Thank you.
Mr. Cohen. Thank you, Mr. Cline.
I now recognize Ms. Garcia from Texas.
Ms. Garcia. Thank you, Mr. Chairman.
And I wanted to start with you, Ms. Fredrickson, just to
clear something.
I know that the statement was made earlier about--in
discussion of a pardon, and a reference was made to President
Obama's orders on DACA, which was a deferred action.
Would you find any way that any deferred action of
deportation would be the same as a pardon?
Yes, ma'am?
Ms. Fredrickson. You know, it is a very novel theory, so I
haven't really engaged with it, so I----
Ms. Garcia. Has anybody else agreed with that
characterization?
Mr. Pfiffner. It seemed that President Obama used
Presidential prosecutorial discretion as a directive to DHS to
do that. So it doesn't sound like a pardon to me.
Ms. Garcia. Okay. Well, thank you. I think I agree with you
on that. And I was sort of taken aback when that comment was
made. I just wanted to clear it up.
But, Ms. Fredrickson, I want to go back to you. You
mentioned earlier that the word ``did not establish'' was very,
very critical in the discussion of the conspiracy and
coordination. Is it also interesting that the word
``collusion'' was not used, it was just conspiracy and
coordination?
Ms. Fredrickson. Well, I think it is just a reflection of
the fact that collusion is not technically a legal term. And so
Mr. Mueller was referring to the actual legal terms. And
collusion is one that sort of encompasses the variety of ways
that coordination or conspiracy can happen. It is not
technically a legal term. So I think I wouldn't find more to it
than that.
Ms. Garcia. Okay. Well, thank you for that.
Then I wanted to ask you, do you agree that the
Constitution bars an obstruction of justice inquiry that might
examine the President's subjective motive behind a facially
legal exercise of a discretionary power because the burden
would be too great on the executive branch?
Ms. Fredrickson. No, certainly not. I think it is one of
the elements of obstruction of justice. And if that were not--
if that could not be investigated, then the President could
never be investigated for obstruction of justice. Can't be
right.
Ms. Garcia. Right. So could you just kind of tell me just a
little bit more so the average viewer who is listening to us
that is sort of kind of lost of how this really works. What
does that really means?
Ms. Fredrickson. Well, what is the intent behind the
action? So it may be technically legal. But if it is done for
an illegal purpose, it could still be illegal. So I think that
is the essence of the way that inquiry look works.
Ms. Garcia. Right. Because I find it interesting that, when
I go back home, people just don't understand what we are really
doing, that, frankly, they think that the President could just
tweet, ``Sylvia Garcia is pardoned,'' and that it is done.
So would one of you--maybe you, sir, could take an--I can't
see your name. Is it Justin?
Mr. Florence. Justin Florence.
Ms. Garcia. I can't read ``Florence,'' but I can read
``Justin,'' so forgive me for using your first name.
But can you just kind of pretend that you are talking to, I
don't know, a middle school in my district and you want to
explain to them how a pardon really works, when does it start?
Can you do it? I mean, because you have clearly said you can't
do it for future crimes.
We already heard reports this morning that at least one
campaign aide, Papadopoulos, who had pled guilty on one of the
things arising from this whole episode, his lawyer has asked
for a pardon for him. So is this something a lawyer has to do?
Who does it? When?
And, again, just you now have less than a minute to explain
to a middle school class in my district what the heck is this
all really about.
Mr. Florence. Sure. I will give it a stab. And I think
these concepts are ones that everybody can understand, and so
we shouldn't obfuscate.
Ms. Garcia. Well, obviously, they have been litigated.
Mr. Florence. So our criminal justice system can be harsh
at times. And as a safety valve for that, the Constitution
includes the pardon power that allows the President to decide,
in some cases, that an injustice occurred or that somebody is
entitled to mercy and a second chance in redemption. And the
President can shorten their sentence or can say, ``I am going
to take this crime away and take it off your record, because
you have served your time, you are entitled to a second
chance.''
The President has broad authority to decide when to do that
and when he thinks it is the right thing to do. And there are
not a lot of procedural rules about how that happens. Different
Presidents follow different processes. This President talked to
Kim Kardashian. Other Presidents require sort of formal
petitions and explanations for why this should happen and
consult with a lot of people.
The problem is, and what I think we are talking about
today, is that that power can be abused in some cases. And when
the President uses that power to undermine our system of checks
and balances or to undermine the principle that nobody in our
country is above the law, then that power can take our
constitutional system and throw it out of whack. And so it is
really important for this committee, for the Congress----
Ms. Garcia. But, again, do you do it at the beginning of
somebody's trial? I mean, like Papadopoulos, he didn't do it at
the time he pled guilty. You know, the lawyers are now
asserting that request. I mean, when can it happen?
Mr. Florence. As a legal matter, the President can pardon
any crime that has been committed, including before the person
has been charged, before they have been prosecuted, before they
have been convicted.
What they can't do, although this isn't in the text of that
one clause, but it is in the Constitution, they can't pardon
future crimes that have not yet been committed. But in
principle it is okay for a President to say, ``I know you
haven't yet been charged, but I think mercy and justice entitle
you to a pardon here.''
Now, what can't happen is to do that for purposes of
getting the President himself out of trouble and allowing the
President to shut down an investigation. That is something that
I don't think can happen.
Ms. Garcia. Right.
And you, I think, all of you seem to be in agreement that
he can't pardon himself. But I know one question I get again in
the district from many of my constituents is, can he pardon his
children, especially the two that work at the White House, or
his wife?
Mr. Pfiffner. The President can pardon anybody except, I
would argue, himself.
And asking for a pardon is okay. But if you are talking to
your middle school students, I say, but pardoning somebody in
exchange for lying, say to a jury, that would be bribery or
obstruction.
Ms. Garcia. Or for money.
Mr. Pfiffner. Pardon?
Ms. Garcia. Right. It would be legal to do it for money.
Mr. Pfiffner. No, it would not be legal to do it for money.
Ms. Garcia. Correct. I said it would be illegal--we are
saying the same thing.
Mr. Pfiffner. Illegal. Okay.
Ms. Garcia. We don't want to confuse the students. We are
trying to make sure they understood.
But, yes, to the children and, yes, he can even pardon his
wife.
Mr. Pfiffner. Yes.
Ms. Garcia. Okay.
Mr. Pfiffner. Constitutionally. It may not be right, it may
not look good, but constitutionally I think would be hard to
overcome that.
Ms. Garcia. All right. Well, thank you.
And I yield back my time, Mr. Chairman.
Thank you.
Mr. Cohen. Thank you.
I now recognize a gentleman who will wrestle with you, Mr.
Jordan.
Mr. Jordan. Thank you, Mr. Chairman.
Mr. Pfiffner, assuming no quid pro quo, no payment, or
anything like that, and assuming they are not talking about
themselves, just to be clear, does the Constitution give the
President of the United States broad and almost absolute
authority to pardon others for a Federal crime?
Mr. Pfiffner. Correct.
Mr. Jordan. Correct. It gives broad, almost kind of blanket
authority that the President has, assuming he is not trying to
pardon himself or anything that was just discussed with the
previous Member of Congress.
Okay. So the ones that he has done this year. So let's talk
about the current President, President Trump, the pardons he
has given. Has he done anything wrong with those particular
pardons?
Mr. Pfiffner. You or I or many people might think that it
is an abuse of power, but he has the constitutional authority
to be able to do that legally, yes.
Mr. Jordan. Joe Arpaio was fine?
Mr. Pfiffner. Pardon?
Mr. Jordan. Mr. Arpaio was fine, one of the pardons, Mr.
Arpaio?
Mr. Pfiffner. Constitutionally and legally, yes.
Mr. Jordan. Scooter Libby was fine?
Mr. Pfiffner. Legally, yes.
Mr. Jordan. Okay. Jack Johnson.
Mr. Pfiffner. Well, that is posthumous and maybe not
necessary, but sure.
Mr. Jordan. No one got paid there, right? Mr. Johnson, he
has passed away, right? So that was fine, right?
Mr. Pfiffner. Yes.
Mr. Jordan. How about Dinesh D'Souza? Is that okay?
Mr. Pfiffner. Yes.
Mr. Jordan. And I think the other one was Mr. Saucier. Is
that right? I think there has been five. Is that correct?
Mr. Pfiffner. Whoever, yes.
Mr. Jordan. Whoever, yes. So that hasn't been a problem.
And how about any sentences that were commuted? Ms.
Johnson, Alice Johnson, I think.
Mr. Pfiffner. Sure. Commuting sentences is part of the
pardon power.
Mr. Jordan. Same thing.
So we have got this hearing and all where all this concern.
But there has been no problem whatsoever thus far with this
power as it is currently under the Constitution.
We have a bill that wants to change it. But it has worked
out all right, hasn't it?
Mr. Pfiffner. There could be problems with it, but there is
not a constitutional or legal prohibition on it.
Mr. Jordan. Fine. Thank you.
Ms. Fredrickson, let me go back to where the ranking member
was. I want to look at what you said 5 days ago.
You wrote a piece--where did you write the piece? Was this
in the newspaper or was this a statement? Press release. Excuse
me, press release.
``The question isn't whether members of the Trump
campaigned conspired with Russia to sway the 2016 elections. We
already know they did.''
You stand by that statement?
Ms. Fredrickson. We have much evidence, as I have answered
several times already.
Mr. Jordan. Let me read from the special counsel's--well,
the letter by the Attorney General referencing the special
counsel's report. It says this: ``The special counsel did not
find that the Trump campaign or anyone associated with it
conspired or coordinated with the Russian Government in these
efforts.''
Ms. Fredrickson. The Attorney General's letter said that
there was not--that conspiracy was not established. Examined
evidence, there is evidence. Does not necessarily mean that the
special counsel decided to move forward with bringing an
indictment.
Mr. Jordan. I guess the question is, is Bob Mueller wrong?
Ms. Fredrickson. We need to see what he found.
Mr. Jordan. That wasn't my question. My question is, is Bob
Mueller wrong?
Ms. Fredrickson. I would have to look at the evidence, as I
think Congress needs to, to do a thorough----
Mr. Jordan. ``The special counsel did not find that any
U.S. person or Trump campaign official or associate conspired
or knowingly coordinated with [Russia]. The special counsel did
not find that the Trump campaign or anyone associated with it
conspired or coordinated with the Russian Government in these
efforts''--interesting clause that follows next--``despite
multiple offers from Russian-affiliated individuals to assist
the Trump campaign.''
So multiple times they dangled the fruit in front of them,
and they chose not to take it. And yet you said, ``We already
know they did.'' And I am trying to figure out who is right,
you or Bob Mueller.
Ms. Fredrickson. I think we need to see what Bob Mueller
was examining. It looks from the Attorney General's letter that
he--it was limited to only the hacking and leaking and the
Russian troll effort as opposed to some of the other evidence
that we have seen in the public eye.
Mr. Jordan. Well, you were dogmatic. You were emphatic. You
said, ``We already know they did.'' And 2 days later the
special counsel, via the letter from the Attorney General of
the United States, says, no, they didn't.
So someone is right and someone is wrong, and I am just
trying to figure out who it is.
Ms. Fredrickson. I have to refer back to what I said
earlier. There are over 100 contacts between various Russians
and Russian-affiliated people with the Trump campaign, the
Trump administration, the Trump family, and that is certainly
evidence.
If Mr. Mueller didn't find it conclusive, then I think it
is up to Congress to examine it.
Mr. Jordan. That is not evidence of conspiring, collusion,
or coordination. That is not. Because he said this: ``Based on
these activities, the special counsel brought criminal charges
against a number of Russian military officers for conspiring to
hack into computers in the United States for the purposes of
influencing the election.''
But the special counsel did not find that the Trump
campaign or anyone associated conspired with Russians. Even
though they were given multiple chances to do so, they chose
not to do so. But yet you pronounced to the whole world 2 days
before this letter, ``We know they did.''
Mr. Raskin. Would the gentlemen yield?
Mr. Jordan. No, I have got 8 seconds.
All I am asking is, is Bob Mueller wrong? And you are the
head of the Constitutional Society, so I want to know what your
thoughts are.
Ms. Fredrickson. As I said, there was much public evidence
that there were contacts between many Russians, and not just
the Russian Government, but private people who were very close
to the Russian Government----
Mr. Jordan. If I could, Ms. Fredrickson----
Ms. Fredrickson [continuing]. With the Trump
administration, the Trump campaign.
Mr. Jordan. But that is not what you said. You said, ``The
question isn't whether members of the Trump campaign conspired
with Russia. We know they did.''
So you are not talking about contacts. People can contact
folks all the time. I bet--Mr. Cline is a freshman Member of
Congress. I bet he has contacted foreigners, because they come
to see him, because it is important that they talk. People from
different embassies. That happens all the time.
So contacts is a lot different than conspiring. You said 2
days before this letter from the Attorney General, we know they
conspired. And Bob Mueller said, no, they didn't, very clearly,
very often. And he even emphatically said they were given
multiple chances to conspire and they didn't go for it. That is
completely opposite of what you said 2 days before. And all I
am asking is, are you calling Bob Mueller a liar?
Ms. Fredrickson. No, I am not. But I do think that this
Congress needs to look and see what that evidence was and----
Mr. Jordan. Well, that raises one last question, if I
could, Mr. Chairman.
Are you going to take back your statement?
Ms. Fredrickson. Once the Mueller report comes out and the
Congress has had a chance to examine it, I would be welcome--I
would welcome an invitation to come back to discuss it.
Mr. Jordan. You are going to take it back?
Mr. Chairman, I look forward to having Ms. Fredrickson come
back in front of this committee----
Mr. Cohen. Thank you, Mr. Jordan. Thank you, Mr. Jordan.
Ms. Escobar is recognized.
Ms. Escobar. Thank you, Mr. Cohen. Thank you, Chairman.
Thanks to everyone on the panel. I really appreciate your
being here.
Ms. Fredrickson, I want to allow you the opportunity to
finish. This has been a very interesting debate so far. And I
just want you to answer one question. I think this is important
for the public, and I think clearly it is important for this
committee and subcommittee.
Why should Members of Congress want to see the Mueller
report?
Ms. Fredrickson. Well, thank you for that question.
You know, as was elaborated earlier, this was quite a
lengthy and thorough investigation and accumulated quite a lot
of evidence. Certainly a fair amount of evidence on obstruction
of justice to the extent that Mr. Mueller himself said that the
President was not exonerated.
I think that it requires Congress to examine, what were the
questions that Mr. Mueller was answering? What was the standard
he was applying legally? Was it the standard to issue an
indictment or was it the standard to actually convict? Which I
think is quite important and a difference that should be
examined by Congress. And then how many different issues did he
actually look into in terms of relationships with Russians?
Ms. Escobar. Actually, I wanted to get to the different
standards, because I think this is important for the American
public as well to understand. What are the thresholds? What are
the standards?
We have not had the privilege yet, obviously, of seeing the
report. And I appreciate the ranking member pointing out how
many millions of dollars, how many attorneys have actually been
utilized, the public resources put into this that require us,
that give us an obligation to see the report.
But what are the different standards that the American
public should be aware of? And I will actually let you answer
the question.
Ms. Fredrickson. Great. Well, thank you.
And I would first just say that I have not been a
prosecutor, so I don't speak from that experience. But
generally, to issue an indictment is a lower standard. The
grand jury determines whether or not there is probable cause,
whereas a prosecutor bringing forth a case, putting a case in
front of a jury has to prove beyond a reasonable doubt.
And so it is a question about whether--and which standard
was applied here, which might have meant an indictment would
issue if it were probable cause but not under the higher
standard.
We just don't know. And I would defer to my colleagues up
here who may have more experience in criminal procedure than I
do.
However, I would say there is also a different standard in
terms of Congress. And that is your constitutional role of
oversight, to examine whether or not, even if behavior which
didn't reach a threshold of beyond a reasonable doubt is
nonetheless something that Congress needs to take action to
correct.
And that could be through many mechanisms. Certainly
impeachment is always available to Congress under the
Constitution. But you have the appropriations power, you have
the power to make law, and so forth.
So I think that is another standard that in this case is
the most important standard for you to take to heart.
Ms. Escobar. Thank you so much.
And actually, Mr. Florence, I want to ask you about that
behavior, because in your written testimony you wrote: ``The
President can run afoul of obstruction laws by dangling or
promising pardons to influence a witness.'' And then you later
write: ``The factual determinations necessary to determine
whether dangled pardons violate the criminal laws can, and
should, be determined through law enforcement investigations or
through congressional oversight inquiries.''
I am curious as to your thoughts and opinions. We have seen
the messaging that President Trump has put out through Twitter
and through interviews in the media. What are your thoughts on
whether the President has actually dangled pardons?
Mr. Florence. So I want to begin by pointing out why it is
so important for Congress to look at this. The Mueller
investigation was into whether a foreign government interfered
in our election. And the special counsel did not exonerate the
President from interfering in that investigation, from
obstructing that investigation.
So we have a foreign government that has attacked our
democracy. I would hope that our executive branch is fully
united behind investigating what happened there, who was
involved in it, and what we can do to make sure it never
happens again. And yet we have a special counsel who, while
being very measured, very cautious, is not able to exonerate
the President from interfering in that investigation? That is
scary.
And so this Congress, this committee, needs to know was the
President trying to block an investigation into a foreign power
altering or interfering in our elections. This committee can do
that in a lot of ways. It can take testimony. It can start by
getting the full Mueller report, all of the underlying evidence
that it found, both into what happened in our election, what
the Russians did, and into whether, how, and why the special
counsel had some concerns that the President may have been
trying to block that investigation.
And that is something that I don't think is a partisan
issue. We should all agree that our elections should be decided
by American voters and by our country, and that we should all
want to make sure that no foreign power interferes, and that
when it does we are all united to make sure that it doesn't
happen again.
Ms. Escobar. I agree. We should all be united. And some of
us are trying to get to that.
One last quick question.
We have learned about the way--or we have discussed today
about how the President actually circumvented what many people
would consider a normal process for determining a pardon by at
least getting some consultation. His consultation instead has
been Kim Kardashian.
Is there a way for Congress, without infringing on the
broad constitutional power that the President has, is there a
way for us to legislate that somehow to put some transparency
in a process?
Mr. Florence. I think transparency is the key word there,
and that there are things that Congress can do with its
legislative authority to ensure that if the President abuses
this power or if there is some suggestion he may be abusing
this power, that Congress can make sure that doesn't go
unpunished and unnoticed.
And so a bill was offered by Mr. Schiff, the Pardon Abuse
Prevention Act, that I think this committee may wish to look
at, to make sure when there is a pardon that may look to put
the President above the law, that the underlying investigative
materials can make their way to Congress so that there is
transparency and that nobody can use this one power to put
themselves above the law and prevent the equal application of
the law.
Ms. Escobar. Thank you.
Mr. Cohen. Thank you.
Ms. Sheila Jackson Lee, a successor to a great, great
former impeachment member of this committee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Yes, I had the experience of being a member of this
committee in the impeachment proceeding that occurred in the
1990s.
Let me thank the chairman and the ranking member. This is
an extremely important hearing. And I thank the witnesses very
much for their presence being here.
I want to ask a question that would warrant just a yes or
no. I am going to take you down memory lane, and that is to
recall, in the fall of 2016, 17 intelligence agencies
determined that Russia was attempting to interfere with the
2016 election. It fell around the fall time. I know that the
then Secretary of Homeland Security was extremely engaged in
the process of working with other intelligence agencies to make
sure that it was as broad a review as possible.
Ms. Fredrickson, do you remember that determination?
Ms. Fredrickson. Yes, I do.
Ms. Jackson Lee. Mr. Florence, do you remember that
determination?
Mr. Florence. Yes.
Ms. Jackson Lee. Mr. Pfiffner, do you remember that
determination?
Mr. Pfiffner. Yes, ma'am.
Ms. Jackson Lee. And, Mr. Kent, do you remember that
determination?
Mr. Kent. I do.
Ms. Jackson Lee. With that as a backdrop, I am going to
proceed with questions.
That establishes that any thought, any facts, any
presentations about Russia's involvement is predicated on the
fact that in 2016 our intelligence agencies, 17, confirmed that
they were attempting to do so. And that was in the midst of the
2016 Presidential election.
In the summer of 2017, I introduced H. Res. 474. And I ask
the chairman unanimous consent to introduce this into the
record.
Mr. Cohen. Without objection.
[The information follows:]
******** INSERT 2-1 ********
Ms. Jackson Lee. This was a resolution in the midst of the
ongoing hysteria and castigating of Director Mueller, accusing
the special counsel's work as a witch hunt. And, frankly,
Members of Congress were frightened.
So the resolution expresses the disapproval of any action
by the President to remove the special counsel investigating
the Russian interference in the 2016 Presidential election and
opposition to the grant of pardons to any person for offenses
against the United States arising out of Russia's activities to
bring about the election of President Donald J. Trump as
President of the United States.
A number of members joined. This was a vigorous discussion.
And I might say, Ms. Fredrickson, it was evidence of the
Article I body attempting to give oversight to what was
seemingly threatening a rule of law--process of the rule of
law.
I will read into the record the language, the opening
language.
``The strength of the American constitutional system
designed in 1787 in Philadelphia is the national government's
separated powers in which the legislative, executive, and
judicial branches serve as checks and counterbalances on each
other, and fidelity to the rule of law is the highest value and
responsibility.''
I am very glad to say Mr. Cohen was a cosponsor of this
legislation.
But, Ms. Fredrickson, would you, then--may I give you an
opportunity to, as you were making your comments, that was it
in your mind that the Article I body, the Congress, had not
been heard on the Mueller report?
Ms. Fredrickson. Absolutely. That is an essential piece.
Ms. Jackson Lee. And offer to me what you thought we might
do as a constitutional body even in receiving the Mueller
report.
By the way, do you believe that we should immediately
receive the Mueller report and its supporting documents?
Ms. Fredrickson. Well, I believe that you should receive it
as soon as whatever redactions that need to be made consistent
with the law, not overly expansive, are made. But that should
be very prompt. And Congress is certainly entitled to.
The Article I powers are clear. Congress has a role in
oversight. Congress has to ensure that rule of law is upheld.
And it is entrusted to you in the Constitution to make sure
that the President himself is not above the law.
So because of the breadth of this investigation, because of
the dangers that you have enumerated that it was meant to
address, and that, according to our intelligence agencies, are
still ongoing threats, it is imperative that this body take up
the report and examine it. I think we still have a lot of
questions about what might happen in the next election. And
there may be lessons to be learned for that purpose as well.
Ms. Jackson Lee. Some will offer the fact that they believe
the pardon power is unconditional. This committee has made a
commitment to the American people to abide by the rule of law.
And we will be looking at issues involving corruption,
obstruction of justice, and the abuse of power.
Mr. Florence, can there be, and what parameters would you
suggest to be considered, if the pardon power was abused?
Mr. Florence. I think this committee has a lot of tools at
its disposal. The first thing that should happen is real
oversight and investigation to find out what abuse has
happened, to assess that, and to provide a report to the public
so that the people can know what has been going on and make
their own judgments.
But the Congress has additional tools at its disposal that
it can use in cases of abuse of power, up to and including
censure, impeachment, and other authorities. And it is
ultimately for the Congress to make those judgments.
What I would offer----
Ms. Jackson Lee. Let me just--you can abuse power with the
use of the pardon power.
Mr. Florence. It is a serious concern that the pardon power
can be abused. And it is incumbent on Congress to prevent that
abuse.
One of the things that we have seen is that it is fairly
rare, although not unprecedented, for pardon questions to get
in front of the courts. There are various reasons for that. And
one consequence of that is that it is so important for this
body as a coequal branch of government to make sure that abuse
doesn't happen.
Ms. Jackson Lee. Well, would you be kind enough to offer
just an example--we won't hold you to it--that might be an
abuse of the pardon power?
Mr. Florence. So I will take your invitation and offer two.
One is the President's pardon of Sheriff Arpaio. So Sheriff
Arpaio was sued by private people for violating their
constitutional rights. The court said he violated their rights,
you got to stop doing that. It entered an injunction to tell
him to stop doing that. He violated that court order again and
again. And the court used its concept authority to say: You
have got to follow my order. You have got to stop violating
constitutional rights.
President Trump then issued a pardon to pardon Sheriff
Arpaio of contempt and to take away the court's ability to
enforce its orders for the reasons I have laid out in my
testimony and that are in briefing in that case. That violates
our system of separation of powers and the core constitutional
command that, when people's rights are violated, they can go to
courts and courts can provide a remedy and protect the
Constitution.
So that is one. If I have time, I will----
Mr. Cohen. You can answer, finish up, and then we will move
on.
Mr. Florence. So I think there has been a lot of reporting
about potential dangled or discussed pardons where people
around the President, his lawyers, have been talking with
subjects of investigations about maybe there will be a pardon
for you. This is just news reporting. I don't know all of the
facts of this.
But if, in fact, the President and his people are offering
or dangling pardons to influence witness testimony in order to
interfere with an investigation, that would be an abuse of the
power.
We don't know all the facts there, and that is why it is so
important to have real investigation and oversight and get to
the bottom of what happened, some of which is alluded to in the
short summary of the Mueller report and all of the findings and
conclusions and evidence that the special counsel had on
obstruction.
Ms. Jackson Lee. Mr. Chairman, I thank you for allowing
that time extended. And I just want to say this evidences,
although I was not able to pose questions to all the witnesses,
it evidences the importance of this hearing.
Thank you so very much. I yield back.
Mr. Cohen. Thank you. And Ms. Barbara Jordan would be proud
of you.
Ms. Dean, you are recognized.
Ms. Dean. Thank you, Mr. Chairman. I appreciate the chance
to be here.
And thank you to all the witnesses.
Thank you Mr. Chairman for having this hearing.
Over the course of the last 2 years, I found myself
thinking I am looking in a mirror upside down. So many things
seem upended. So many things seem out of place. So many of our
institutions or the use of our institutions seem just out of
kilter. And much of this before I came to Congress and was
sworn in January the 3rd.
And I want to ask about pardon power and, like my
colleagues and like all of you, talk about the importance of
full transparency of the Mueller report, because if we don't
have full transparency of the Mueller report and then pardons
flow from the activities of that, even more troubling and more
hidden and obscure will the truth be from the American public.
Professor Kent, I wanted to give you an opportunity to--and
I apologize. I was in another hearing. So if this is
repetitive, I am sorry, Mr. Chairman.
I wanted to give you a chance to comment on the
constitutional authority to pardon. And I saw your outline of
the four kind of fundamental questions that you asked.
Could you tell me some of your concerns with this President
and his already use of the pardon power and what you worry
about as possible use of the pardon power moving forward?
Mr. Kent. Yes. Thank you, Congresswoman.
You know, certainly one thing that I and I think a lot of
other people worry about would be a self-pardon. We have talked
about that at length and reasons why it seems that we all agree
that that would be unconstitutional.
You know, I think also extremely troubling are what Mr.
Florence and others have referred to, the news reports--and,
again, we don't know all the facts--but the reports that people
who seem to be intermediaries of the President have been
interacting with lawyers for people who may have damaging
testimony about the President to raise the possibility of
pardons.
And again, we certainly would want to gather all of the
facts before making any kind of conclusions about it. But I, in
addition to thinking that the Congress has oversight power to
look into this, I mean, those clearly could be Federal crimes.
Those could be crimes of obstruction of justice or related
crimes. And I think we should all hope that we live in a
country where the Justice Department would be independent
enough to be looking into that as well.
Ms. Dean. Okay. Thank you.
And, Ms. Fredrickson, one of the more troubling aspects I
found with Attorney General Barr's scant summary--and it was by
no means encompassing, we didn't even see a single full
sentence from the Mueller report, which I found troubling--the
Attorney General came to a legal conclusion regarding
obstruction of justice. It was 48 hours after the report was
delivered. And yet unable to deliver the report to us, he was
able to get through it in that 48 hours and made the legal
conclusion that there was no obstruction of justice by this
President. That I found particularly troubling.
The Attorney General argued there that the President cannot
commit obstruction of justice--this was in his 19-page memo
that he wrote before he earned the position of Attorney
General--that he cannot commit obstruction of justice when
using his own constitutional authority. I found that reasoning
to be flawed.
Could you expand on this notion of constitutional powers
that cannot lead to obstruction of justice and explain where
the Attorney General's reasoning is either right or falls short
when it relates to pardon power?
Ms. Fredrickson. Thank you for that question.
So the issue is, as Professor Kent had discussed earlier,
the unitary executive theory, which posits that the President
has absolute control over the entire executive branch, and that
is in all decisions, hiring and firing, and so forth, and that
by exercising his discretionary powers, he can actually not
commit obstruction of justice.
It is a very, very questionable fringe theory. And
Professor Kent in his, I think, upcoming Harvard Law Review
article with a couple of other esteemed scholars goes to
examine the history of the pardon power and discusses at length
the unitary executive theory.
But it is, as I said, a fringe theory that arrogates
complete power to the President that I think certainly, if you
consider why there was a founding of the United States of
America after a rebellion against an absolute monarch, it is
clear that even if you believe in the originalist understanding
of the Constitution, you would particularly then assume that
the President could not be above the law.
But I think maybe I should turn it over to Professor Kent
who has delved so deeply into the history that he might offer
you more.
Ms. Dean. Thank you.
Mr. Kent, did you want to add to that?
Mr. Kent. I agree that the very, I would call it extreme
view of Presidential unaccountability that was offered by Mr.
Barr while he was still a private citizen has very little basis
in our constitutional history and tradition.
You know, the President has many powers that are in Article
II, and the idea that just simply because you can point to some
part of Article II and say, ``I am exercising that power,''
that immunizes Presidential action from accountability by the
law, it is illogical and just contrary to so much Supreme Court
precedent and so many generally accepted legal understandings,
I am not quite sure what more to say about it. It is incorrect.
Ms. Dean. I appreciate that. And I appreciate the chance to
remind the American public of our history and where the pardon
power came from, that it was to be exercised as a benevolent
power, not a power to get cronies off for doing some criminal
acts.
Mr. Cohen. Thank you, Ms. Dean.
Mr. Raskin. Will the gentlelady yield?
Ms. Dean. Yes.
Mr. Raskin. Could I----
Mr. Cohen. Go ahead.
Mr. Raskin. I promise it will be brief, a concluding
question along this point.
Mr. Cohen. Go ahead.
Mr. Raskin. I just want to know, certainly when we all read
Attorney General Barr's--or then lawyer Barr's memorandum
asserting that the President could not obstruct justice within
the meaning of the law, that this was an extreme and eccentric
kind of view, could somebody characterize whether it has gained
traction in the scholarly literature or in the law generally?
Is it still a real minority view, or is he speaking for a lot
of people now?
I yield back to you, Mr. Chair.
Mr. Florence. I would be happy to offer an observation
here.
Even before that memo came out, when others in the
President's circle had floated this theory, my organization,
Protect Democracy, organized a letter from dozens of
constitutional law scholars, I believe Professor Kent and his
coauthors among them, explaining why this theory has no basis
in the Constitution.
What I think is important for this committee to do is to
make sure that this stays a fringe position and doesn't somehow
make its way into the law. Since Watergate, it has been clear
that the President can't abuse his powers to place himself
above the law. This President I think is trying to do that in a
number of ways, and it is really critical for this body to make
sure that that doesn't happen, and, frankly, for all of the
people who you represent, to make sure that we stay a Nation of
laws and not a Nation where we have a king who can do what he
wishes subject to no law.
Mr. Cohen. Thank you.
Let me ask you all to refresh my recollection or to give me
some information. I believe that we have only had one other
special counsel, and that was Mr. Danforth in Waco, under the
regulations. And we had two independent counsels, Mr. Jaworski,
he was a successor to another independent counsel, and Mr.
Starr.
Did any of those three individuals give opinions of
violations of the law in their reports? Or did they make the
reports, submit them to Congress, and let Congress make
decisions?
Mr. Florence.
Mr. Florence. They made sure that those reports could get
to Congress. And one thing that we have done to make sure that
that is publicly known is to unearth the Jaworski road map that
the grand jury provided to this committee in the context of
that investigation because it is so important for Congress, as
a coequal branch, to uphold our Constitution and ensure
accountability here.
Mr. Cohen. And same thing for Kenneth Starr. He didn't
recommend this is a violation, that is a violation, I would
indict, or I wouldn't indict. He just gave the report to
Congress, did he not?
So this is really strange. This is the first time in maybe
the history of the country in a special counsel or independent
counsel that the Attorney General has jumped in the breach and
given his opinion of what the report said. It has never
happened.
Okay, let me ask you this. Is it possible there was a
counterintelligence portion to the Mueller investigation and
that wasn't--wouldn't have been part of conspiracy but
something in there about counterintelligence that might have
shown that the President was compromised by his holdings of
properties in foreign countries or his desire to have a
property in a foreign country or loans that were made to him or
moneys that were laundered through a bank to him, and that
possibly those compromised him and we could have a President
that the report could show is under the influence or could be
under the influence of the Russians, and yet it still wouldn't
amount to a conspiracy? Is that not possible?
Ms. Fredrickson, would that be something you think might be
in, could be in the Mueller report?
Ms. Fredrickson. Well, it might be. Obviously, I haven't
seen the Mueller report, and there may be parts of it that
involve national intelligence that I would never see since my
top secret clearance has expired.
But certainly an important question, and, again, a reason
why Congress needs to get that report, because you can
certainly examine all of that.
Mr. Cohen. And is it possible that there is something in
there that might amount to a coverup of knowledge of what the
Russians were doing which would not amount to a conspiracy?
Like if the Trump children or one of the children knew that the
Trump campaign was--what the Russians were doing, but didn't
say, ``We are going to do this for it,'' there is no quid pro
quo, but they knew about it, and maybe they even discussed,
``Well, we would sure like to have sanctions lifted at some
time,'' that wouldn't be a conspiracy, would it?
How far would they have to go to make that a conspiracy?
And maybe they wouldn't want it to be known if it was less than
a conspiracy but maybe a coverup of some information?
Ms. Fredrickson. I really don't--I can't comment on what
might be in the national intelligence portion of the Mueller
memo. But, again, I can only say that that is why it is so
vital that this body examine that information. There certainly
are many aspects of--certainly much that we have seen reported
about relationships that have to do with financial holdings,
with property, with the Trump Tower in Moscow, with a variety
of other issues that may not have been part of a conspiracy,
may not have been the government necessarily, but may be a
reason why there could have been a coverup.
But, again, I can't really speculate, but I think it is
important for you--because many people are thinking of those--
asking those questions of themselves that for them to be
definitely answered, it comes to Congress to do that.
Mr. Cohen. You made a point in your opening statement to
say that the Barr 19-page memo was devoid of legal support,
right? But if it had a lot of political support, wouldn't that
trump the legal support?
Ms. Fredrickson. Right. Well, I think Professor Kent, he
used the word extreme. I used the word in my oral testimony or
just now of fringe. But I think you can find a few people who
will endorse it.
But it certainly--it is a very interesting contrast between
some of the things that Mr. Barr said in his testimony before
the Senate Judiciary Committee to what he said in the memo when
he was a private citizen auditioning for a different kind of a
job with the President. So certainly it has some political
force behind it.
Mr. Cohen. Coming back to pardons, to close this hearing
out, there was a governor of Tennessee--I don't know if any of
you all heard of him--Leonard Ray Blanton. Anybody heard of
Leonard Ray Blanton? Former Member of the House, Governor of
Tennessee from 1974, when he was elected leaving Congress after
8 years, and served from 1975 to 1979.
Leonard Ray Blanton, at the last minute right before he was
leaving office, the FBI found out he was going an issue a lot
of pardons to a lot of people for money.
So the lieutenant governor of the State, John Wilder, the
speaker of the State, Ned McWherter, jumped into action with
the winner of the 1978 election, now United States Senator
Lamar Alexander, and swore him into office about 48 hours or 24
hours, right at the last minute, early, so that Governor
Blanton couldn't issue those pardons, and he didn't. And Senate
Alexander became--then Mr. Alexander became Governor Alexander.
But by issuing pardons at the last minute, but for somebody
having knowledge of it and stepping into the breach, there is
no remedy. Impeachment is not a remedy.
So I find Mr. Mason's perspective better than Mr.
Madison's, because Mr. Madison was wrong to say impeachment is
the answer. Impeachment is tough, and impeachment can't do
anything for somebody who issues pardons at the last minute. I
just remember the Clinton administration. Almost all the
pardons were at the last minute.
As I have said, I urged President Obama for 3 or 4 years to
be issuing commutations. And I had confirmation from people who
were in the office, his attorneys in the office who worked on
that, that they had gone so slow and the process was terribly
slow, and they didn't get offices geared up, and they lost
people, they lost--their pardon attorney, I think quit. And I
forget the lady's name that worked over there in the White
House Counsel's Office.
But if he issued 1,700 commutations, I, again, say that was
about 7,000 too few. And it was 0.3, not 3 percent, but 0.3
percent that Mr. Johnson said had violated some portion of the
law, 4 people out of 1,700. Obama did pretty good in his
thorough examination. He didn't do good enough for the rest of
them.
I think we need to amend the pardon power. I recommended it
back in 1977 when I was a constitutional convention of
Tennessee vice president, an E vice president of the
constitutional convention. And we had the pardon power before
us, because I knew what Ray Blanton was doing and it had come
up, and recommended that we change the pardon power and give
it, say, if four of five of our Supreme Court justices looked
at it and didn't think it was the interest of justice, it
wouldn't go into effect.
Now, the justices didn't want to touch it, it didn't get
anywhere. But it was a way to put some kind of a limit on the
Governor's pardon power by having the court look at it.
Here we proposed limiting it to certain close folk. But
there should be something. And I hope you all would give it a
little thought and submit to me, if you would, any thoughts you
have on how we should amend the pardon power or recommend it.
Not easy.
But there are certain things we can work together on the
Republican side. We had a hearing on the Emergency Powers Acts,
and we have a lot of agreement there on a possible statute. And
the Republicans are just as much concerned about an
overreaching executive if it is, you know, maybe a different
party, but, in general, their philosophy is that. And so we
might find some common ground. I hope you would help us with
that. You know, I am concerned what could happen with these
pardons.
I think somebody said that these acts of obstruction of
justice were in clear public view. That is what maybe Mueller
said, they were all in public view, which would have been the
Comey thing. But it wasn't all in public view, because the
dinner wasn't in public view when he had the one-on-one dinner
and asked him to lay off of Mr. Flynn. We don't know what else
was not in public view. It was in public view, I guess, when he
told Lester Holt: I did it because of the Russia thing.
But this President is a President who thinks he can get
away with shooting somebody on 5th Avenue. If he thinks he can
get away with shooting somebody on 5th Avenue, he is not going
to have a problem in public view going: I did this because of
the Russia thing. He also doesn't think about the ramifications
of his actions, because he has not real good on the second and
third steps. Not real good on that.
So I think the pardon power is something we need to look
at. I think it can be abused. I think it will be abused.
And I am so happy that Ms. Johnson got out of jail, my
constituent, and the gentleman in Nashville got out. But there
are thousands and thousands of people who Kim Kardashian has
not taken to her heart and that Sylvester Stallone hasn't read
about, people who may not be dandies, who deserve commutations,
and the idea that we give them on celebrity.
And he has asked for a list of people who are celebrities,
not asked for people who have been unjustly convicted or served
too long. He hasn't even through about that. He is just looking
for celebrities.
Mr. Cohen. So it is a problem.
Mr. Raskin, you want to follow up with something? Professor
Raskin.
Mr. Raskin. Mr. Chairman, I want to thank you for calling
this hearing. I want to thank everybody for their flexibility
and suppleness in dealing with the questions today. Obviously,
we are in the middle of an ongoing constitutional emergency
here, and we appreciate all of the support and the insight of
the people in academia.
Thank you, Mr. Chairman. I yield back to you.
Mr. Cohen. Thank you.
And that will conclude our hearing. And I have to find the
last things I need to say. That conclude, we appreciate that,
we have done that, we have done that, we have done that.
This concludes today's hearing. I want to thank all of our
witnesses for appearing today, even if they weren't under oral
God's witnessed oath.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
With that, excellent hearing, thank you for your
participation, excellent children in attendance. We are
adjourned.
[Whereupon, at 4:08 p.m., the subcommittee was adjourned.]
APPENDIX
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