Tomorrow at 9:00 a.m., Common Cause President Karen Hobert Flynn will testify before the House Committee on the Judiciary’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties on the “Constitutional Means to Prevent Abuse of the Clemency Power.” Her full written testimony was submitted to the Subcommittee in advance of the hearing. Other witnesses include Georgetown University Law Professor Caroline Fredrickson and historian Timothy Naftali of New York University.
Flynn’s testimony discusses the importance of understanding executive clemency in the context of broader problems in our criminal justice system. Until Congress passes sweeping criminal justice reform, clemency powers can be a tool to help address the disparate and devastating impacts of our criminal justice system on Black, Brown and Indigenous Americans. Flynn contrasts President Obama’s commuting the sentences of a record 1,715 Americans serving unjust sentences with President Trump’s abuses of the power.
Whereas President Obama used executive clemency to correct injustices, President Trump abused the pardon power to send a clear message that he and his associates viewed themselves as above the law. President Trump, in his words and deeds, showed that he would use the pardon power to reward obstruction and subvert democratic norms of accountability to further his own political power. It is a study in contrasts.
The testimony explores President Trump’s myriad abuses of the pardon power and urges a full congressional investigation of the circumstances behind them:
In the wake of President Trump’s abuse of the pardon power to obstruct investigations into Russia’s interference in U.S. elections and other abuses of the clemency power, Congress must investigate his pardons and commutations for potential violations of obstruction, bribery and other laws and take steps to bolster our democracy’s resilience to ensure that such abuses of executive clemency do not happen again.
Flynn’s testimony explores a variety of solutions ranging from amending the United States Constitution as proposed in House Joint Resolution 4 explicitly prohibiting certain types of pardons as well as actions currently available to Congress through the anti-bribery statute. In her testimony Flynn calls for re-introduction and hearings on the Protecting Our Democracy Act, a comprehensive reform package to prevent future abuses and require additional accountability and transparency provisions for the Executive Branch. It was first introduced in the 116th Congress. As introduced in the last Congress, it included the Abuse of the Pardon Power Prevention Act as Title I.
It would ensure greater integrity in future presidents’ use of the pardon power by requiring, within 30 days of the president issuing a pardon, that the president and attorney general submit to the House and Senate Judiciary Committees materials obtained or produced by the Executive Office of the President and DOJ relating to the pardon. The Act also echoes Special Counsel Mueller’s report, making clear that the anti-bribery statute, 18 U.S.C. § 201, applies to presidential pardons. Finally, the Act would establish that a president’s self-pardon “is void and of no effect.”
To watch the hearing on the Committee website, click here.
To see a full list of witnesses, click here.
To read Karen Hobert Flynn’s full written testimony to the Committee, click here.