ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF JOHN C. KEENEY

Mr. Chairman and Members of the Subcommittee, I am pleased to be here today to present the views of the Department of Justice on S. 2214, a bill that would amend the enforcement provisions of the Ethics in Government Act (EIGA). EIGA provides for the disclosure by high level officials of the Executive branch, Members of Congress and Members of the Judiciary of their financial interests. Currently, violations of EIGA's disclosure requirements may be prosecuted as false statements under 18 U.S.C. $1001 and fines under the Criminal Fine Enforcement Act of 1984 may also be imposed. 2/ Thus, an individual violating EIGA may be subject to a $5,000 civil fine, which is a civil penalty under the EIGA itself, and, in addition, to five years imprisonment under 18 U.S.C. $1001 plus up to $250,000 in fines under the Criminal Fine Enforcement Act. S. 2214 would limit the penalty for EIGA infractions to a $5,000 civil fine while also making that limitation retroactive to "the date of enactment of the Ethics in Government Act."

We believe that the discretion to determine appropriate penalties for violation of federal law rests ultimately with the Congress, and we defer to your judgement in this case. However, we believe Congress has no authority to enact the retroactivity section of this bill and that, in addition, the retroactivity provision would be an unconstitutional intrusion on the

Pg. 2

President's constitutional power to pardon.

Originally signed into law on October 26, 1978, the EIGA provides, in title III, for full and complete disclosure of the financial activities of high level officials in all three branches of the federal governement. It does not regulate their conduct or prohibit their holding of any financial interest, but it does require disclosure, on certain forms, of such matters as outside income and of some types of loans made to these officials. EIGA applies to a large number of career persons in high positions as well as to the President, Members of Congress, Members of the Judiciary and Cabinet officers. It extends, for example, to all Members of the Senior Executive Service and to Administrative Law Judges.

The

Since the EIGA was passed in 1978, the Justice Department has applied section 1001 to EIGA and the forms required by the EIGA carry specific warnings that section 1001 applies to intentionally false statements made on those forms. Nevertheless, it has been

Department policy in EIGA cases to bring prosecutions under section 1001 only in aggravated cases where the false statements can be shown to have been deliberately designed to conceal improper or illegal conduct and thus can be shown beyond a reasonable doubt to have been made knowingly and willfully. Whenever this test has not been met, criminal prosecution has been

Pg 3.

declined.

J

Consequently, indictments under section 1001 in cases

involving EIGA forms have been authorized in only five cases in

In our experience, the majority of high level public officials are scrupulously honest and would not for a minute consider falsifying their EIGA forms. Further, as was stated at

the outset, whether false statements on EIGA forms should be removed from the scope of section 1001 and punished by a maximum civil penalty of $5,000 is a policy matter for Congress to decide.

However, the retroactivity provisions in sections 2, 3 and 4 of the bill can be read to nullify all criminal convictions under the Act since its passage in 1978. If this is the bill's intent, such action would be unprecedented. We strongly oppose the retroactivity provisions of S. 2214 on the grounds that Congress lacks the authority to enact a retroactivity provision which, as here, would unconstitutionally invade the President's exclusive power to pardon under Article II, Section 2, clause 1 of the Constitution.

That clause states that the President has the

3/ Former Representative George Hansen, former Senior Assistant Postmaster General Paul E. Jaquish and former Deputy Director of the Science and Engineering Directorate at NASA, Herman E. Thomason, were convicted and/or pled guilty to making false statements on their EIGA forms. Former Assistant Secretary of the Navy George A. Sawyer and federal District Court Judge Harry E. Claiborne were acquitted of making such statements but Judge Claiborne was convicted on counts involving income tax evasion.

power to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." By contrast, the Constitution gives the Congress no authority to legislate a pardon for any particular individual or class of individuals. Chief Justice Marshall explained in 1833 that a pardon is "an act of grace, proceeding with the power entrusted with the execution of the laws ..." United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833). Because the President's pardon power flows directly from the Constitution, it is not dependent on a legislative enactment, and cannot be infringed by Congress. See Schick v. Reed, 419 U.S. 256, 267 (1974); United States v. Klein, 80 U.S. (13 Wall.) 128, 148 (1872).

There is some precedent for Congressional power in certain limited circumstances to effect the same result that would flow from an exercise of the President's pardon power. However, these circumstances are limited to those involving prospective grants of amnesty or immunity, or restoration of civil rights, to persons who have not yet been subjected to prosecution by the Executive4/

4/ For example, in the post-Civil War period Congress enacted several pieces of legislation restoring civil rights to former rebels. Indeed, its power to take such action is specifically recongnized in the Fourteenth Amendment. See U.S. Const. Amend. XIV, sec. 3. In Brown v. Walker, 161 U.S. 593 (1896), the Supreme Court upheld a statute requiring witnesses subpoenaed in connection with Interstate Commerce Commission proceedings to testify in return for a grant of absolute immunity from any subsequent prosecution. See Burdick v. United States, 236 U.S. 79, 94 (1915), describing the "substantial" difference between "legislative immunity" and a presidential pardon.

Pg. 5

In no case we have found has Congress been held to have the power, through self-executing legislation, to grant relief in the form of remission of a prison sentence or monetary fine to individuals who have been convicted of violating a criminal statute.

We know of only one previous occasion on which Congress has considered legislation which might have had the effect of releasing convicted individuals. This was in S. 1145, a bill introduced in the 94th Congress, but not enacted, which would have provided amnesty to persons who failed to register for the draft, which included a provision directing the release from prison of persons convicted and serving a sentence for so failing to register. The Department testified in opposition to this legislation, taking the position that Congress has no power to effect release from prison, through legislation or otherwise, and that it may not encroach upon the President's power in this regard.

In sum, we defer to the Congress on the matter of the proper penalties to be assessed for knowingly and willfully false statements made on EIGA forms. However, insofar as S. 2214 would have the effect of voiding or modifying in any respect criminal penalties already imposed as a result of violations of the Ethics in Government Act, we believe it exceeds Congress' power to legislate, and would be an unconstitutional intrusion on the President's pardon power.