A former general counsel to the House of Representatives, Stanley M. Brand, has an op-ed piece in today’s Washington Post questioning the legality of the congressional hearings into the pardons granted by former president Bill Clinton. Are the hearings constitutional?
Brand questions 1) whether Congress has a right to review the president’s pardon power since it has no role in the pardon process; and 2) whether Congress is overstepping its functions by merely trying to reveal how the pardons happened without having any legislative justification for the probes.
But other scholars say that Congress has to meet a very low threshold to justify holding hearings into any matter. Since the Senate hearing explicitly examined whether new laws or procedures are needed to prevent abuse of the presidential pardon power, that chamber clearly passes the test of having the hearing be relevant to their legislative function. Rep. Dan Burton, chairman of the House inquiry, did make an opening statement that his hearings were simply for the purpose of shedding light on the pardon process. And courts have stepped in to stop congressional hearings that were found to have no reason except to humiliate those called to testify. But it’s up to those called to testify to challenge the legality of a hearing, and so far, in this matter, none have. Also on Congress’ side is the inclination of the courts to grant Congress a lot of latitude in its investigations of the executive branch.
Bonus Explainer: Since Clinton’s pardon power is absolute, what can all the congressional and judicial probes do anyway? For one thing, Congress could always decide once was not enough, and re-impeach Clinton, as this “Explainer” explains. And while the courts can’t overturn Clinton’s pardons, they can examine the circumstances under which they were granted. If the courts were to find, for example, that Clinton granted Marc Rich his pardon in exchange for a time-share at a Swiss chalet, that could lead to indictments on bribery charges.
