House Panel Dissects Presidential Pardon Power

WASHINGTON (CN) – As Washington continues to grapple with the end of Special Counsel Robert Mueller’s probe into Russian interference in the 2016 presidential election, legal experts told lawmakers Wednesday the president’s pardon power is extremely broad, making congressional oversight imperative.

President Donald Trump speaks in the East Room of the White House last week before signing an executive order on university free speech. (AP Photo/Evan Vucci)

“It is a serious concern that the pardon power can be abused,” Justin Florence, legal director of Protect Democracy, told lawmakers Wednesday. “It is incumbent on Congress to prevent that abuse.”

Democrats have long raised concerns about Trump pardoning people involved in the Russia investigation, such as his convicted former campaign manager Paul Manafort. Trump also last year claimed in a tweet to have the “absolute right” to pardon himself.

The legal experts who testified Wednesday generally agreed that while the power is extremely broad, presidents can still abuse it. They all said a president pardoning himself would be constitutionally problematic.

“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 self-pardon would vitiate a provision of the Constitution that allows for prosecution after removal from office,” said James Pfiffner, a professor at George Mason University. “If there were self-pardons, that part of the Constitution would be meaningless.”  

Experts also appeared to agree that it would be a problem if a president sold a pardon for money or dangled one in exchange for something beneficial to him.

Florence told lawmakers it is their responsibility to figure out what penalty – be it censure, impeachment, or something else – should come to a president who abuses the pardon power.

Representative Steve Cohen, a Tennessee Democrat who oversaw Wednesday’s hearing, has introduced a constitutional amendment that would limit the scope of the pardon power by preventing presidents from pardoning their family members and people who served in their administration or on their campaign.

Cohen advocated for his proposal on Wednesday, aligning himself with George Mason, a founding father who was skeptical of the power, over James Madison, who cast Congress as the ultimate check against presidential abuse of the authority.

“I find Mr. Mason’s perspective better than Mr. Madison’s because Mr. Madison was wrong to say impeachment is the answer,” Cohen said. “Impeachment is tough and impeachment can’t do anything for somebody who issues pardons at the last minute.” 

Wednesday’s hearing in the House Judiciary Subcommittee on Constitution, Civil Rights and Civil Justice was nominally about the president’s pardon power, but the announcement Friday that Mueller had completed his investigation redirected the focus of the day.

Lawmakers pressed the experts who testified about what might be in the still-secret report, including about specific details in Attorney General William Barr’s letter summarizing Mueller’s findings. In a letter to Congress over the weekend, Barr said Mueller did not find evidence that anyone with the Trump campaign was involved in a conspiracy with Russia.

Democrats have spent the ensuing days demanding the public release of Mueller’s report.

As a result of this timing, many questions from lawmakers were about Mueller’s investigation, the report and Barr’s letter, setting up the hearing as a squabble over Mueller that has become familiar in Washington.

Republicans in particular hit American Constitution Society President Caroline Fredrickson, who testified at the hearing, for her organization’s statement that in part said “we already know” people with the Trump campaign “conspired with Russia to sway the 2016 elections.”

Democrats also spent time speculating about details that might be in the report. Cohen asked the witnesses at the end of the hearing if it is possible part of Mueller’s report that was not summarized in the Barr letter might have found that Trump is “compromised” by business dealings with foreign countries.

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