Congress Considers Changes To Presidential Clemency Law

February 10, 2021 by Tom Ramstack
President Donald Trump looks at his phone during a roundtable with governors on the reopening of America's small businesses, in the State Dining Room of the White House in Washington. (AP Photo/Alex Brandon)

WASHINGTON — A backlash against former President Donald Trump continued Tuesday, first with a Senate trial on whether to impeach him again and second with a House hearing on whether to strip the presidency of some authority to grant clemencies to convicted criminals.

Trump was accused of using the authority to pardon or commute the sentences of his friends and political allies, in part to protect himself from having them testify against him.

Meanwhile, the Justice Department announced that it would ask nearly all the U.S. attorneys appointed by Trump to resign as soon as Tuesday in another sign of distrust toward his administration.

At the House hearing, Democrats accused Trump of abusing his power to grant clemency in ways never intended by Article II, Section 2 of the U.S. Constitution.

Steve Cohen, D-Tenn., chairman of the House Judiciary subcommittee on the Constitution, civil rights and civil liberties, said Trump used the authority for “self-serving or corrupt reasons.”

Cohen added, “President Trump even discussed pardoning himself and his children in his final days in office.”

Cohen has co-sponsored a constitutional amendment that would prevent presidents from granting pardons to themselves.

In addition, a bill introduced by Democrats in 2019 would require that if a president pardons himself or his relatives while they are being investigated or could be witnesses to a crime, the prosecutors’ evidence must be turned over to Congress. The bill has not yet been approved by Congress.

Rep. Mike Johnson, R-La., recommended against changing the presidential clemency power, particularly with a constitutional amendment.

“The problem there is that it’s pretty vague and overbroad language,” Johnson said.

He cautioned that limiting the president’s authority could lead to “politically-motivated prosecutions.”

“The pardon power is best vested in the president,” Johnson said.

Trump granted 237 clemencies for persons charged or convicted of federal crimes. Although the number of clemencies is similar to previous presidential administrations, Trump was different by sometimes bypassing the Justice Department’s Office of the Pardon Attorney, where petitions for pardons are filed.

Trump had political connections with many of the persons he pardoned. They commonly had been charged with fraud or public corruption.

The New York Times reported in the last days of the Trump presidency that some former administration officials were soliciting fees to lobby for presidential pardons.

A pardon means all further punishment for a crime ends and the conviction is voided. A commuted sentence means prison time is reduced or eliminated but the conviction remains on the convicted person’s record. The two of them are grouped together as clemencies.

Trump granted his most controversial clemencies to his former campaign staff members and political advisers, such as Paul Manafort, Stephen Bannon, Michael Flynn, Roger Stone and George Papadopoulos.

The most recent court action regarding the pardons came last Thursday, when a judge in New York ruled Manafort could not be prosecuted on mortgage fraud charges. Prosecuting him now after Trump’s pardon two months ago would create an unconstitutional double jeopardy, the judge said. 

Manafort was Trump’s 2016 presidential campaign manager. He was accused in New York of falsifying business records to obtain millions of dollars in a mortgage fraud scam.

In federal court, he was convicted on charges of hiding his consulting work for the pro-Russian government of Viktor Yanukovych in Ukraine. Additional charges of obstruction of justice were added after he allegedly lied to investigators.

Manafort’s case was discussed as an example Tuesday at the House hearing by lawmakers and expert witnesses on constitutional law.

“The pardon power is supposed to be an act of mercy,” said Caroline Fredrickson 

a Georgetown University Law Center professor.

However, Trump used it ”as a way of obstructing justice,” Fredrickson said.

Karen Hobert Flynn, president of the non-profit government watchdog group Common Cause, referred to Trump when she said, “These kinds of actions raise the specter that the president is above the law.”

She added, “I think it has done damage to our democracy.”

Timothy Naftali, a professor of public service at New York University, described Trump as “the only president who saw this pardon as a get out of jail free card.”

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