Josh Blackman, Seth Barrett Tillman, Timothy Naftali discussed on C-SPAN Programming
Thank you for inviting me to testify. My name is Josh Blackman. And I'm a constitutional law professor at the South Texas College. A lot of Houston. People often think that the courts have a monopoly on interpreting the Constitution. They don't as we speak. The house managers are trying President come for violating the Constitution and here we will discuss the constitutional means prevent abuse of the clemency power. In my brief opening remarks. I like the three primary points First, I'll discuss important purpose of the pardon power. Second, I'll consider propose stashed for regulations. The pardon power and third, I will talk about HR four a proposed constitutional amendment that would limit presidential clemency Today. People open view apartment powers, a form of error correction. For example, the courts made an error by imposing unjust sentence for prosecutors pursued an unjust charge but as originally understood clemency, clemency, conservative greater purpose in Carol's number 74,000 R. Hamilton identified the quote principal argument. The pardon power, quote, restoring the tranquility. The Commonwealth pardons or not merely help individuals president's kinship pardons to advance broader public policies. Some of the most famous pardons in American history served his purpose. President Washington part of participants, the whiskey rebellion. President Jefferson Pardon those convicted on this edition act. After civil war, President Johnson pardoned former Confederates. Each of these decisions was unpopular in some quarters. But in each case the president used his pardon power to pursue the common good as he saw it. This history brings me to my second point last summer, this committee marked up the abuse of Pardon. Internet I criticizes, Build a post like authored from Law Fair with my colleague, Seth Barrett Tillman was a lecturer at the men of the University Department. Long Ireland now submit that post for the record. In short, this proposed bill would alter the presidency such that he would now second guess his official action for fear of prosecution. Congress, not in power for the prosecutors to the power of the criminal process to dictate what the public interest is. Third. This committee is considering HR four, a proposed constitutional amendment that would limit whom the president compartment I opposed this amendment. Attempts to constitutional eyes a single conception of the public interest what is and is not a proper pardon. The public interest is always contestable because no one has institutional knowledge to declare a monopoly on what is in the common good. The president should be able to make important decisions with a bigger independence and dispatch. The president of the Great Latitude issue pardons precise because the president should have a great latitude to pursue what he sees as the common good living the presence power too. Few parties will limit the product is out, promoting Hamilton refer to as the tranquility of the Commonwealth this minute snappy adopted. Thank you for your time. And I'll be happy to answer any of your questions. Thank you, Professor. Appreciate your testimony. We now would like to recognize our next witness. And I'm gonna have to ask you to help me with the pronunciation of your name. Is it? Not that volley? Uh, Professor Doctor Holly. Is that correct? I'm gonna presume is correct. So our next witness is Timothy not folly. And I've seen on television 1000 times, well, dozens of times, and I never get his name quite right. He's a clinical associate professor of Public Service clinical associate professor of history and director of the undergraduate public policy. Major. At New York University. He focuses on national security and intelligence policy, International history and presidential history. He served as a consultant to the 9 11 Commission and recently co authored a book called Impeachment in American History. He's also the author of a December 2020 article. The Atlantic magazine titled Trump's Pardons made the vegetable Real. Party and why you? He served us the founding director of Richard Nixon Presidential Library Museum and your Belinda, California and I kind of guessed that he is considered the top expert on the President Nixon professor enough. Kali received his PhD and Emma history from Harvard and M. A, with distinction from Johns Hopkins School of Advanced International Studies and a B a magna cum laude with a distinct History from Yale University professor, not Holly. You are recognized for five minutes. How I wish to thank the chairman to Cohen, ranking member, Mr Johnson, members of the House Judiciary Committee subcommittee on the Constitution, civil rights and civil liberties for the privilege of testifying to you today concerns about the breath of the president's clemency power. And the desire to in some way reform. It are not new to this moment in our history. It is not solely a product of these deeply partisan times. It is not an unprecedented knee jerk reaction to the conduct of our 45th president, according to Fordham University law, schools, Democracy and the Constitution Clinic. 41 separate occasions since 1974 members of Congress from both parties have introduced legislative proposals designed in one way or the other to modify the president's youth of executive clemency. And over. Half of these initiatives were introduced before the year 2000 and one indeed, 20 years ago, almost to the day this subcommittee held a similar hearing on the presidential pardon. The catalyst then was concerned and disappointment on both sides of the aisle in how and to whom President Clinton had issued 140 pardons and 36 computations on his final day in the White House, most notoriously One to form to be not too Marc Rich, a fugitive facing criminal prosecution for tax evasion, whose former wife was a donor to the Clinton library. All of the Panelists two decades ago caution this subcommittee not to amend the Constitution, reflecting confidence that the Clinton pardons would be an aberration. Because of the criticism they had inspired quote. I very much doubt that future presidents will need to be restrained in their use of pardon power, One Panelist argued. Given the in terrarium example of the final Clinton grants, I quote our distinguished predecessors with humility. Who knows how well today's testimony will age in 20 years, let alone the rest of us, But I think I can say is an historian that history can on Lee Act as a deterrent to bad behavior if we all know it the last few months, let alone the last 20 years. Suggests at least two this scholar that we were far too optimistic about presidential pardon behavior 20 years ago, the Clinton pardons should have led to concrete federal corrective action. Today, I will leave most of the discussion of legal precedents to my fellow Panelists who are lawyers, perhaps my value to you. Is in using the statement to share some history indicating the perils of an UN reformed presidential Kaminsky power and how a few presidents, one of whom later became chief justice of the Supreme Court looked at the matter. The only president to have joined the Supreme Court after leaving office, of course, was William Howard Taft and therefore He is a unique witness. If you will, on looking at the pardon from both the perspective of 1600, Pennsylvania Avenue and that of the Supreme Court, Timothy Naftali, New York University professor and presidential historian. In the book that he wrote as a law professor before he came back to federal service when he was appointed to the court, he wrote the duty involved in the parting power is the most difficult one to perform because it is completely within the discretion of the executive and is lacking so in rules or limitations of its exercise. The on Lee rule he can follow is he shall not exercise it against the public interest. When he became chief justice, he had to look at a case that involved contempt of court. The question that was raised was Can the pardon be used in a in a way to protect those whose actions threatened our very system of justice? And he concluded, yes, The pardon power is unfettered. But, he added, there is always the possibility of impeachment. As a corrective action as a deterrent. My belief in the need for corrective action is founded on what I learned about our nation's 37th President Richard Nixon from publicly available materials at the Nixon Library..