[House Report 115-797]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-797
======================================================================
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT AND DIRECTING THE
ATTORNEY GENERAL TO TRANSMIT, RESPECTIVELY, CERTAIN DOCUMENTS TO THE
HOUSE OF REPRESENTATIVES RELATING TO THE PRESIDENT'S USE OF THE PARDON
POWER UNDER ARTICLE II, SECTION 2 OF THE CONSTITUTION
_______
June 28, 2018.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 928]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 928) of inquiry requesting the President
and directing the Attorney General to transmit, respectively,
certain documents to the House of Representatives relating to
the President's use of the pardon power under article II,
section 2 of the Constitution, having considered the same,
report unfavorably thereon with an amendment and recommend that
the resolution as amended not be agreed to.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Committee Cost Estimate.......................................... 5
Duplication of Federal Programs.................................. 5
Disclosure of Directed Rule Makings.............................. 5
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Dissenting Views................................................. 6
The Amendment
The amendment is as follows:
Strike all that follows after the resolving clause and
insert the following:
That the President is requested, and Attorney General of the
United States is directed, to transmit, respectively, to the
House of Representatives, not later than 14 days after the date
of the adoption of this resolution, copies of any document,
record, audio recording, memorandum, correspondence, or other
communication in their possession, or any portion of any such
communication, that refers or relates to the following:
(1) Any pardon issued by the President on or after
January 20, 2017.
(2) Any pardon under consideration by the President,
including pardons under consideration for any of the
following individuals:
(A) Michael Cohen, the President's personal
attorney.
(B) Paul Manafort, former chairman of the
Trump Presidential campaign.
(C) Richard Gates, former deputy chairman of
the Trump Presidential campaign.
(D) Michael Flynn, former National Security
Advisor.
(E) George Papadopoulos, advisor to the Trump
Presidential campaign.
(F) Alex van der Zwaan, attorney and former
associate of Paul Manafort.
(3) Any consideration of the President's power to
pardon himself, including his assertion that he has the
``absolute right'' to pardon himself.
(4) President Trump's decision to issue pardons
without first consulting the Office of the Pardon
Attorney of the Department of Justice.
Purpose and Summary
H. Res. 928 is a non-binding resolution of inquiry that
requests that the Trump Administration provide the House of
Representatives with certain documents related to the
President's use of the pardon power under article II, section 2
of the Constitution.
Background and Need for the Legislation
Resolutions of inquiry, if properly drafted, are given
privileged parliamentary status in the House. This means that,
under certain circumstances, a resolution of inquiry can be
considered on the House floor even if the committee to which it
was referred has not ordered the resolution reported and the
majority party's leadership has not scheduled it for
consideration. Clause 7 of rule XIII of the Rules of the House
of Representatives requires the committee to which the
resolution is referred to act on the resolution within 14
legislative days, or a motion to discharge the committee from
consideration is considered privileged on the floor of the
House. In calculating the days available for committee
consideration, the day of introduction and the day of discharge
are not counted.\1\
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\1\Wm. Holmes Brown, et al., House Practice: A Guide to the Rules,
Precedents, and Procedures of the House ch. 49, Sec. 6, p. 834 (2011).
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Under the Rules and precedents of the House, a resolution
of inquiry is a means by which the House may request
information from the President or the head of one of the
executive departments. According to Deschler's Precedents, it
is a ``simple resolution making a direct request or demand of
the President or the head of an executive department to furnish
the House of Representatives with specific factual information
in the possession of the executive branch.''\2\ Such
resolutions must ask for facts, documents, or specific
information; they may not be used to request an opinion or
require an investigation.\3\ Resolutions of inquiry are not
akin to subpoenas, they have no legal force, and thus
compliance by the Executive Branch with the House's request for
information is purely voluntary.
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\2\7 Deschler's Precedents of the United States House of
Representatives, H. Doc. No. 94-661, 94th Cong., 2d Sess., ch. 24,
Sec. 8.
\3\A resolution that seeks more than factual information does not
enjoy privileged status. Brown, supra note 1, at 833-34.
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According to a study conducted by the Congressional
Research Service (CRS), between 1947 and 2011, 290 resolutions
of inquiry were introduced in the House.\4\ Within this period,
CRS found that ``two periods in particular, 1971-1975 and 2003-
2006, saw the highest levels of activity on resolutions of
inquiry'' and that the ``Committees on Armed Services, Foreign
Affairs, and the Judiciary have received the largest share of
references.''\5\ CRS further found that ``in recent Congresses,
such resolutions have overwhelmingly become a tool of the
minority party in the House.''\6\
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\4\Christopher M. Davis, Congressional Research Service,
Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-
2011 at i (2012).
\5\Id.
\6\Id.
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A Committee has a number of choices after a resolution of
inquiry is referred to it. It may vote on the resolution up or
down as is or it may amend it, and it may report the resolution
favorably, unfavorably, or with no recommendation.
H. Res. 928 is the seventh resolution of inquiry that the
Judiciary Committee has been forced to consider this Congress.
This is the same number of resolutions of inquiry that all
other House committees combined have had to consider. Moreover,
the resolution is completely unnecessary. It seeks information
about things that have not yet happened. It is completely
prospective and there is no indication that, in issuing the
pardons he has issued, President Trump has acted improperly or
outside the scope of his constitutional authority. Indeed,
President Trump has pardoned five individuals and commuted the
sentences of only two. The Justice Department's U.S. Attorney's
Manual states that ``commutation of sentence is an
extraordinary remedy that is rarely granted.'' Thus far,
President Trump's actions with the pardon power are in line
with that sentiment.
Hearings
The Committee on the Judiciary held no hearings on H. Res.
928.
Committee Consideration
On June 26, 2018, the Committee met in open session and
ordered the resolution (H. Res. 928) unfavorably reported by a
roll call vote of 13-12, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H. Res. 928.
1. Motion to report H. Res. 928 unfavorably to the House.
Approved 13 to 12.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL)..................................
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ).................................
Mr. Rutherford (FL)............................ X
Ms. Handel (GA)................................ X
Mr. Rothfus (PA)............................... X
Mr. Nadler (NY), Ranking Member................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
Ms. Demings (FL)............................... X
------------------------
Total...................................... 13 12
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d) of rule XIII of the Rules of
the House of Representatives, the Committee estimates that
implementing this non-binding resolution would not result in
any significant costs. The Congressional Budget Office did not
provide a cost estimate for the resolution.
Duplication of Federal Programs
No provision of H. Res. 928 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee finds that H. Res. 928 contains no directed
rule making within the meaning of 5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H. Res.
928 requests certain documents from the Trump Administration
related to the President's use of the pardon power under
article II, section 2 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H. Res. 928 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the resolution as
reported by the Committee.
H. Res. 928, a non-binding resolution of inquiry, requests
that the President and the Attorney General of the United
States transmit certain documents and communications to the
House of Representatives related to the President's use of the
pardon power under article II, section 2 of the Constitution.
Dissenting Views
H. Res. 928 directs President Donald Trump and U.S.
Attorney General Jeff Sessions to produce any information
related to the President's decision to use (or abuse) the
pardon power under article II, section 2 of the Constitution.
This legislation is absolutely necessary given the Majority's
repeated failure to conduct proper oversight of President
Trump's use of the pardon power.
DESCRIPTION AND BACKGROUND
Under the rules and precedents of the House, a resolution
of inquiry is used to obtain information from the executive
branch. A resolution of inquiry is directed at the President or
the head of a Cabinet-level agency, requesting facts within the
control of the executive branch.\1\ As a ``simple resolution''
(designated by ``H. Res.''), a resolution of inquiry does not
carry the force of law. Thus, ``compliance by the executive
branch with the House's request is voluntary, resting largely
on a sense of comity between co-equal branches of government
and a recognition of the necessity for Congress to be well-
informed as it legislates.''\2\
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\1\Christopher M. Davis, Resolutions of Inquiry: An Analysis of
Their Use in the House, 1947-2011, Cong. Research Service, May 15, 2012
(R40879).
\2\Id. at 2.
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House Rules afford resolutions of inquiry a privileged
parliamentary status. A Member files a resolution of inquiry
like any other legislation. The resolution is then referred to
the proper committee of jurisdiction. If the committee does not
report the resolution to the House within 14 legislative days
of its introduction, however, a motion to discharge the
resolution from committee can be made on the House floor.\3\ In
practice, even when the Majority opposes a resolution of
inquiry, a committee will mark it up and report it adversely to
prevent its sponsor from making a privileged motion to call up
the legislation on the House floor.\4\
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\3\House Rule XIII, clause 7.
\4\Davis, supra note 1, at 1.
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H. Res. 928, which was introduced by Representative Ted
Lieu (D-CA) on June 13, 2018, together with Rep. Bill Pascrell,
Jr. (D-NJ) as an original cosponsor, would direct the President
and the Attorney General to transmit to the House, not later
than 14 days after the enactment of the resolution, copies of
any document, record, memo, correspondence, or other
communication of the White House or the Department of Justice
(DOJ), respectively, that refers or relates to:
(1) any presidential pardon issued after January 20,
2017;
(2) any pardon under consideration by the President,
including but not limited to Michael Cohen, Paul
Manafort, Richard Gates, Michael Flynn, George
Papadopoulos, or Alex van der Zwaan;
(3) any consideration of the President's ability to
pardon himself; and
(4) The President's decision to issue pardons without
consulting the DOJ's Office of the Pardon Attorney.
WHY H.RES. 928 IS NEEDED
A clear pattern is emerging regarding President Trump's use
of the pardon power. The following is a partial list of
individuals whom President Trump has either pardoned or granted
a commuted sentence:
(1) Sheriff Joe Arpaio:\5\ the controversial and
racist former sheriff from Arizona who was found guilty
of criminal contempt for continuing to racially profile
Latinos in violation of a court order. He did not serve
any time in prison and his sentence was pardoned by
President Trump on August 25, 2017;
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\5\@realDonaldTrump, Twitter, Aug. 25, 2017, 07:00 P.M.; Julie
Hirschfeld Davis & Maggie Haberman, Trump Pardons Joe Arpaio, Who
Became Face of Crackdown on Illegal Immigration, N.Y. Times, Aug. 25,
2017.
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(2) Kristian Saucier:\6\ a navy sailor who was
convicted for the unauthorized retention of classified
information, specifically photos depicting classified
areas of the U.S.S. Alexandria submarine. He was found
guilty in 2016. His cause was championed by former
National Security Advisor Michael Flynn, and the
President pardoned him on March 9, 2018;
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\6\Matt Zapotosky, Trump pardons former Navy sailor convicted of
retaining submarine pictures in case that drew comparisons to Clinton,
Wash. Post, Mar. 9, 2018.
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(3) Scooter Libby:\7\ the former chief of staff to
Vice President Dick Cheney who was convicted of perjury
and obstruction of justice for his involvement in
revealing the identity of Valerie Plame, a former
covert Central Intelligence Agency operative. His
sentence was originally commuted by President George W.
Bush and then pardoned by President Trump in April
2018;
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\7\John Wagner, Matt Zapotosky, & Joshua Dawsey, Trump issues
pardon to Scooter Libby, former chief of staff to Vice President
Cheney, Wash. Post, Apr. 13, 2018.
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(4) Dinesh D'Souza:\8\ the conservative political
author who pled guilty to campaign finance law
violations in 2014. He was given five years of
probation prior to receiving his pardon on May 31,
2018.
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\8\Peter Baker, Dinesh D'Souza, Pardoned by Trump, Claims Victory
Over Obama Administration, N.Y. Times, June 1, 2018.
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These individuals were convicted of crimes similar to those
alleged by the Special Counsel against various associates of
President Trump. Former National Security Advisor Mike Flynn
and former Trump Deputy Campaign Manager Rick Gates have plead
guilty to making false statements to the Federal Bureau of
Investigation (FBI) and federal prosecutors.\9\ Mr. Gates'
associate Alex van der Zwaan and former Trump campaign advisor
George Papadopoulos also pled guilty to making false statements
to the FBI.\10\ President Trump's former campaign manager Paul
Manafort has yet to plead to any counts, but faces multiple
charges of money laundering, wire fraud, witness tampering,
obstruction of justice, making false statements, Foreign Agent
Registration Act violations, and conspiracy against the United
States.\11\ President Trump's personal attorney Michael Cohen,
while not yet indicted, is allegedly being investigated for
bank fraud, wire fraud, and campaign finance law violations--
all crimes that have already been the focus of President
Trump's pardons.\12\
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\9\United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Nov.
30, 2017) (plea agreement); United States v. Richard W. Gates, No.
1:17-cr-201 (D.D.C. Feb. 23, 2018) (plea agreement).
\10\United States v. Alex van der Zwaan, No. 1:18-cr-31 (D.D.C.
Feb. 14, 2018) (plea agreement); United States v. George Papadopoulos,
No. 1:17-cr-182 (D.D.C. Oct. 5, 2017) (plea agreement).
\11\United States v. Paul Manafort & Konstantin Kilimnik, No. 1:17-
cr-201 (D.D.C. June 8, 2018) (third superseding indictment).
\12\Carol D. Leonnig, Tom Hamburger, & Devlin Barrett, Trump
attorney Cohen is being investigated for possible bank fraud, campaign
finance violations, Wash. Post, Apr. 9, 2018.
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Moreover, it is clear from President Trump's public
statements--as well as those of individuals closely associated
with him--that the President is signaling his willingness to
pardon individuals, including himself, in order to obstruct the
ongoing Special Counsel investigation.
The statements by President Trump, his surrogates, and his
legal team suggest that he views the pardon power as unlimited
and that he will use it to undermine the ongoing investigation
into efforts by Russia to interfere with the 2016 presidential
election. For example, President Trump has claimed, ``As has
been stated by numerous legal scholars, I have the absolute
right to pardon myself, but why would I do so when I have done
nothing wrong?''\13\ Similarly, the President's attorney Rudy
Giuliani has argued that the President's powers are so
expansive that ``[i]n no case can he be subpoenaed or
indicted.''\14\ Mr. Giuliani later suggested that the President
may consider pardoning Paul Manafort because he believes Mr.
Manafort was treated unfairly by the Special Counsel. He
stated, ``When it's over, hey, he's the president of the United
States. He retains his pardon power. Nobody is taking that away
from him. He can pardon, in his judgment.''\15\
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\13\@realDonaldTrump, Twitter, June 4, 2018, 08:35 A.M.
\14\S.V. Date, Giuliani: Trump could have shot Comey and still
couldn't be indicted for it, HuffPost, June 3, 2018.
\15\Hope Yen, Rudy Giuliani Says President Trump Could Use Pardon
Power After Russia Probe, Time, June 18, 2018.
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The President and his surrogates' claims run counter to the
Framers' intent and the basic rule of law. The Framers of the
Constitution discussed the issue of self-pardon and concluded
that the concept was inherently corrupt.\16\ Furthermore, the
DOJ's Office of Legal Counsel reiterated this position when it
informed President Richard Nixon he could not pardon himself:
``Under the fundamental rule that no one may be the judge in
his own case, the President cannot pardon himself.''\17\
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\16\In Convention, Richmond, June 18, 1788, in The Debates in the
Several State Conventions on the Adoption of the Constitution, ed.
Jonathan Elliot, 5 vols. (Washington, DC: Taylor and Maury, 1863),
4:498.
\17\Mary C. Lawton, Acting Assistant Attorney General, Office of
Legal Counsel, U.S. Dep't of Justice, Memorandum Opinion for the Deputy
Attorney General (Aug. 5, 1974).
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CONCLUSION
In light of his public statements--as well as those of his
close associates--President Trump and his use of the pardon
power should be the subject of exhaustive oversight by this
Committee. Judiciary Democrats have written Chairman Bob
Goodlatte on three separate occasions this Congress requesting
that he hold hearings on abuse of the pardon power, with no
response.\18\ It is abundantly clear that the Majority has
chosen to ignore our critical concerns and refuses to conduct
any meaningful oversight of the Trump Administration. Instead,
the Majority voted to report H. Res. 928 unfavorably to the
House as a further effort to prevent such oversight. For the
forgoing reasons, we dissent.
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\18\Ranking Member Nadler, et. al., to Chairman Robert Goodlatte,
H. Comm. on the Judiciary, April 17, 2018, Ranking Member Nadler, et.
al., to Chairman Robert Goodlatte, H. Comm. on the Judiciary, June 6,
2018, Ranking Member Nadler, et. al., to Chairman Robert Goodlatte, H.
Comm. on the Judiciary, June 28, 2018, Ranking Member Nadler, et. al.,
to Chairman.
Mr. Nadler.
Ms. Lofgren.
Ms. Jackson Lee.
Mr. Cohen.
Mr. Johnson, Jr.
Mr. Deutch.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Mr. Jeffries.
Mr. Cicilline.
Mr. Lieu.
Ms. Jayapal.
Mr. Raskin.
Ms. Demings.
[all]