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Use and Misuse of Presidential Clemency Power for Executive Branch Officials

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Use and Misuse of Presidential Clemency Power for Executive Branch Officials USE AND MISUSE OF PRESIDENTIAL CLEMENCY POWER FOR EXECUTIVE BRANCH OFFICIALS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION JULY 11, 2007 Serial No. 110–57 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 36–605 PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate 0ct 09 2002 09:56 Jan 30, 2008 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\WORK\FULL\071107\36605.000 HJUD1 PsN: 36605 COMMITTEE ON THE JUDICIARY JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, JR., JERROLD NADLER, New York Wisconsin ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio MAXINE WATERS, California DANIEL E. LUNGREN, California WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah ROBERT WEXLER, Florida RIC KELLER, Florida LINDA T. SA´ NCHEZ, California DARRELL ISSA, California STEVE COHEN, Tennessee MIKE PENCE, Indiana HANK JOHNSON, Georgia J. RANDY FORBES, Virginia LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa BRAD SHERMAN, California TOM FEENEY, Florida TAMMY BALDWIN, Wisconsin TRENT FRANKS, Arizona ANTHONY D. WEINER, New York LOUIE GOHMERT, Texas ADAM B. SCHIFF, California JIM JORDAN, Ohio ARTUR DAVIS, Alabama DEBBIE WASSERMAN SCHULTZ, Florida KEITH ELLISON, Minnesota [Vacant] PERRY APELBAUM, Staff Director and Chief Counsel JOSEPH GIBSON, Minority Chief Counsel (II) VerDate 0ct 09 2002 09:56 Jan 30, 2008 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 H:\WORK\FULL\071107\36605.000 HJUD1 PsN: 36605 C O N T E N T S JULY 11, 2007 Page OPENING STATEMENTS The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Ranking Member, Committee on the Judiciary ......................... 3 WITNESSES The Honorable Joseph C. Wilson, IV, former Ambassador Oral Testimony ..................................................................................................... 4 Prepared Statement ............................................................................................. 6 Mr. Douglas A. Berman, Professor, Moritz College of Law, The Ohio State University Oral Testimony ..................................................................................................... 8 Prepared Statement ............................................................................................. 10 Mr. Roger C. Adams, Office of the Pardon Attorney, U.S. Department of Justice Oral Testimony ..................................................................................................... 30 Prepared Statement ............................................................................................. 33 Mr. Thomas Cochran, Assistant Federal Public Defender, Middle District of North Carolina Oral Testimony ..................................................................................................... 44 Prepared Statement ............................................................................................. 47 Mr. David Rivkin, Baker & Hostetler LLP Oral Testimony ..................................................................................................... 56 Prepared Statement ............................................................................................. 58 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD List of Pardons Granted by President George W. Bush and Pardons Granted by President William Clinton, submitted by the Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Ranking Mem- ber, Committee on the Judiciary ........................................................................ 116 Article from The Washington Post, dated March 7, 2007, submitted by the Honorable Chris Cannon, a Representative in Congress from the State of Utah, and Member, Committee on the Judiciary .......................................... 166 Excerpts from Minority Views, Report on Prewar Intelligence Assessments About Postwar Iraq, Together With Additional Views, Senate Select Com- mittee On Intelligence, 110th Congress, submitted by the Honorable Chris Cannon, a Representative in Congress from the State of Utah, and Member, Committee on the Judiciary ................................................................................ 168 Letter from the Honorable John Conyers, Jr., a Representative in Congress, from the State of Michigan, and Chairman, Committee on the Judiciary, to President George W. Bush, dated July 6, 2007 ............................................. 190 Letter from the Honorable John Conyers, Jr., a Representative in Congress, from the State of Michigan, and Chairman, Committee on the Judiciary, to President George W. Bush, dated July 10, 2007 ........................................... 192 (III) VerDate 0ct 09 2002 09:56 Jan 30, 2008 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 H:\WORK\FULL\071107\36605.000 HJUD1 PsN: 36605 IV Page Letter from Fred Fielding, White House Counsel, to the Honorable John Conyers, Jr., a Representative in Congress, from the State of Michigan, and Chairman, Committee on the Judiciary, dated July 11, 2007 .................. 193 VerDate 0ct 09 2002 09:56 Jan 30, 2008 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 H:\WORK\FULL\071107\36605.000 HJUD1 PsN: 36605 USE AND MISUSE OF PRESIDENTIAL CLEM- ENCY POWER FOR EXECUTIVE BRANCH OF- FICIALS WEDNESDAY, JULY 11, 2007 HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to call, at 12:30 p.m., in Room 2138, Rayburn House Office Building, the Honorable John Conyers, Jr. (Chairman of the Committee) presiding. Present: Representatives Conyers, Nadler, Scott, Lofgren, Jack- son Lee, Delahunt, Wexler, Cohen, Weiner, Wasserman Schultz, Ellison, Smith, Sensenbrenner, Coble, Gallegly, Chabot, Lungren, Cannon, Keller, Issa, Pence, Forbes, King, Feeney, Franks, Gohmert, and Jordan. Staff Present: Perry Apelbaum, Staff Director and Chief Counsel; Mark Dubester, Majority Counsel; Caroline Lynch, Minority Coun- sel; Allison Beach, Minority Counsel; Sean McLaughlin, Deputy Chief Minority Counsel/Staff Director; Crystal Jezierski, Minority Counsel; and Matt Morgan, Staff Assistant. Mr. CONYERS. The Committee will come to order. I welcome my colleagues, our witnesses, and our guests here in the Judiciary hearing room. We are gathered here today on the subject of the hearing on the use and misuse of President’s commutation power. Without objection, the Chair is authorized to declare a recess. And I begin with the observation that there are few principles in our society more important than equal justice under law. The idea that no man or woman is above the law is firmly embedded in our Nation’s founding documents and underlies the entirety of the criminal justice system. When clemency is granted outside the normal pardon system, and particularly when it is issued to members of the President’s own Administration, that fundamental concept is called into ques- tion. I respect the President’s authority under the Constitution to grant clemency. At the same time, I would hope that the White House would acknowledge our role as a co-equal branch of govern- ment with not only the right but the duty to conduct oversight. Today as part of our oversight responsibility I hope we can ob- tain answers to several important questions surrounding the Presi- dent’s recent decision to commute the prison sentence of Mr. Libby: Was the grant of clemency here consistent with other pardons and commutations by this President? Were the prosecutor, the pardon (1) VerDate 0ct 09 2002 09:56 Jan 30, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\FULL\071107\36605.000 HJUD1 PsN: 36605 2 attorney or other relevant officials in the Department of Justice consulted before the commutation was issued? Was the process to consider the commutation fair, thorough and available to similarly situated individuals? Was the net result of the commutation con- sistent with the Nation’s sentencing guidelines? Looking at his initial public statement, the President evidently believed that the 30-month prison sentence issued by Judge Walton was too harsh but felt some punishment was appropriate; in this case, a fine and probation. Is there any construction by which this ultimate sentence is consistent with sentencing guidelines? If not, do we need to reconsider the guidelines so that whatever factor the President identified can be taken into account in future sentencing decisions for others? What impact will the President’s decision have on Congress’ ability to learn how Ms. Plame came to be outed from the CIA in 2003? Was her outing the inadvertent result of a slip of the tongue by a government bureaucrat or was it part of a larger conspiracy to besmirch Ms. Plame and her husband Ambassador Wilson, who had written an op ed criticizing the Administration? Does the fact that Mr. Libby has received a commuted sentence rather than a pardon inhibit
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