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June 10, 2022

Intriguing clemency news emerges from January 6 committee's first public hearing

This Politico piece reports on the intriguing clemency-related news that emerged from last night's January 6 committee public hearing. Here is how the piece starts:

Rep. Scott Perry of Pennsylvania, as well as multiple other Republican lawmakers, contacted the White House in the weeks after Jan. 6, 2021, to seek presidential pardons for their roles in attempting to overturn the presidential election results, the Jan. 6 select committee revealed Thursday in its prime-time hearing on the Capitol attack.

“Rep. Scott Perry … has refused to testify here,” Rep. Liz Cheney (R-Wyo.), vice chair of the select committee, said as she opened its case to the American public. “As you will see, Representative Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon. Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election”

The new details surfaced during the panel’s first public hearing, as the bipartisan committee launched the unveiling of its findings of a yearlong investigation into the insurrection. It’s the first of a string of hearings scheduled in the coming weeks that are set to paint a picture of a carefully planned and orchestrated attack on American democracy.

This news, in addition to leading to speculation about the other members of Congress who sought a pardon from Prez Trump in January 2021, must prompt questions about what crimes these folks thought they committed and exactly what behavior led then to worry about criminal prosecution by the US Department of Justice.

June 10, 2022 at 09:02 AM | Permalink

Comments

There needs to be a constitutional amendment to take clemency out of the sole control of the President. The record of abuse is now too long and too troubling. Perhaps Congress should be enabled to overrule clemency by either a majority or a supermajority. But there have been just too many times in recent decades where thoroughly guilty (and appalling) people have gotten a walk solely because the President, often for unworthy reasons, wanted it that way.

Posted by: Bill Otis | Jun 10, 2022 10:47:15 AM

Sincere question, Bill: do you think it would have been a good use on congressional time for the current Congress to have had authority to sit in judgment of Trump's pardons? And would the authority ever expire (e.g., could a Congress undo a commutation or pardon from many, many years before)? I suppose that power might restrain some of the worst impulses in some Prez, but Trump hardly seemed restrained by anyone or anything (including criminal law and constitutional duties) when he really wanted to do something.

I share your interest in seeing clemency reform, but I think it could and should start with something short of constitutional amendment right now. I do not this the FIX Clemency Act is perfect, but I do think it is a very good start. Would you generally support the creation of an independent clemency review/recommendation body for the feds (which is similar to what many states have)?

Posted by: Doug B. | Jun 10, 2022 12:59:58 PM

Professor,

I don't see that legislation could accomplish anything to stop abuses of the pardon power. Unlike states, where the governor often requires a positive recommendation before even being given the choice to grant clemency, the federal constitution currently vests that decision solely with the president. That officer can delegate initial recommendations to some other party (as is currently done with the pardon attorney within the DOJ), but in the end the power remains vested if the president chooses to grant for whatever (or no) reason. Legislation is not going to change that.

I also believe most pardons are seen as politically fraught enough that presidents actually prefer the current system. They don't _want_ a bunch of positive recommendations just in case one of those recipients later goes on to commit even the most minor of offenses.

Posted by: Soronel Haetir | Jun 10, 2022 2:50:58 PM

Doug --

"Bill: do you think it would have been a good use on congressional time for the current Congress to have had authority to sit in judgment of Trump's pardons?"

Depends on how much time Congress would take and what other business needed attending to. I'm not sure how it would work, since it's a new proposal, but I'd think the Judiciary Committee would look at (the relative few) that don't smell real good and tee them up for a floor vote.

"And would the authority ever expire (e.g., could a Congress undo a commutation or pardon from many, many years before)?"

Yes, it would expire at the end of the next Congress. My idea is not to drag out the process but to have some means of putting a brake on the real stinkers.

"I suppose that power might restrain some of the worst impulses in some Prez, but Trump hardly seemed restrained by anyone or anything (including criminal law and constitutional duties) when he really wanted to do something."

The idea would be not so much to restrain the President as to have a means to override him when he showed insufficient restraint (or simply corrupt judgment).

"Would you generally support the creation of an independent clemency review/recommendation body for the feds (which is similar to what many states have)?"

Probably not. There is no public outcry for it. The big abuse right now stems from the unchecked nature of the President's plenary power. It needs to get checked by the creation of a mechanism to say "no" when he has said a thoughtless or irrational or solely political or bought-off "yes."

Posted by: Bill Otis | Jun 10, 2022 3:12:17 PM

Soronel: I agree that some amendment would be need to completely preclude the prospect of abuse, but I think a more transparent and independent screening process might help produce more transparent and thoughtful clemency decision-making. To date, it seems Presidents do not want a different process, as they could institute a different process and have not yet done so. But I do think Congress could and should require (or at least encourage) a better process, and that is why I support the FIX Clemency Act.

Posted by: Doug B. | Jun 10, 2022 3:45:00 PM

Wouldn’t a body created with anything short of a constitutional amendment be against the clear language of the text and historical precedent?

Unless you are talking about a powerless committee of senators/congressman pontificating in a political spectacle.

We have enough of those.

Posted by: TarlsQtr | Jun 10, 2022 4:03:56 PM

Tarls: an amendment would be needed to limit the clemency power in Article II, but I think it could be constitutional for Congress to create and fund an independent body tasked with giving the Prez advice on how best to exercise his discretionary clemency power. Congress currently funds the Justice Department, which has an Office of the Pardon Attorney that makes recommendations to the Prez about clemency grants. (Congress also created and still funds the US Sentencing Commission, which gives Article III judges advice on how they exercise discretionary sentencing power.)

Posted by: Doug B. | Jun 10, 2022 4:11:07 PM

So another powerless political commission that will just create more hearings for congressional narcissists. As evidenced by last night, we have enough of those.

As to the facts surrounding the article, Perry has called Cheney’s claim a “soulless lie” and no actual evidence of such a request has been presented.

Posted by: TatlsQtr | Jun 10, 2022 4:17:46 PM

A key issue in any advisory body will be how mandatory the body is and how public their recommendations are.

In my state, the normal process is for the Division of Probation and Parole to prepare a report on each application, but that report is not public. And the governor is free to issue a pardon outside of the normal process. So while there is a process to review the applications, it is neither transparent nor required.

A federal statute might be able to create a transparent review body, but, without a constitutional amendment, the President would always be free to grant a pardon outside of the statutory process.

Posted by: tmm | Jun 11, 2022 9:33:32 AM

It would take a constitutional amendment to give Congress authority in the clemency process. Of course, I’d like to see a process that is fair with reliable criteria but it is an unfettered executive function meant to grant mercy and compassion to people who do not have sentencing relief through the judicial branch or through the legislation passed by the legislative branch.

I don’t believe that involving Congress in the clemency process would remove partisan politics from clemency decisions. I fear that it may even multiply the influence of partisan politics. Congress is influenced by special interest and political contributions and affiliations in the same way as the execrative branch. I even fear that the participation of congress would exasperate the problems.

Congress would be much more effective if they stayed in their legal lane and passed legislation that would be meaningful for sentencing relief for categories. They have not had the will to do this. Suggestions for legislation would be 1. Retroactive sentencing relief for categories like – the equal act, crack cocaine disparity, 2. Retroactive sentencing relief for people suffering from the trial penalty, 3. Retroactive relief for those sentenced under Old Law and 4. Retroactive sentencing relief for nonviolent marijuana offenders.

Congress does not seem to have the will to do what they have the constitutional authority to do. Members of congress do have the authority to support clemency petitions. This support from congressmen is not available for viewing, but be assured that many petitions are accompanied by multiple letters of support from Congressmen, Judges, family, friends and advocates.

Posted by: beth curtis | Jun 11, 2022 7:17:29 PM

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