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December 26, 2008

"A Father, a Son, and a Short-Lived Presidential Pardon"

The title of this post is the title of this New York Times article with the latest news on the latest presidential pardon snafu.  Here is the most notable section for those really interested in trying to figure out what the heck is going on and what is going wrong on the clemency:

The White House said Thursday that when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.

The White House spokeswoman, Dana M. Perino, said in an e-mail message Thursday that the administration never sought information on political donations in considering pardon applications. “This would be inappropriate on many levels,” Ms. Perino said. “Given that no one advising the president knew of the donation by Toussie’s father, and because of the possibility of an appearance of impropriety, the counsel to the president withdrew his recommendation.”

While the younger Mr. Toussie has said nothing publicly since the revelation of the donations on Tuesday, his supporters say he deserved a pardon because he was contrite about his misdeeds and had made significant charitable contributions before and after his convictions. Both of these factors are believed to have been factors in Mr. Bush’s original decision to grant the pardon. “There was a long list of charitable donations and work he had done since his sentence,” Ms. Perino said.

Officials said Fred F. Fielding, the White House counsel, was unaware in reviewing the petition that Mr. Toussie’s father had recently donated $28,500 to the Republican National Committee and $2,300 to the presidential campaign of Senator John McCain of Arizona. People involved in the pardon process say it has become more common in recent months for those seeking clemency to go directly to the White House, as Mr. Toussie’s lawyer, Bradford Berenson, did, rather than go through the Justice Department.

Mr. Bush’s revoking of the pardon was so unusual that some legal experts questioned whether he had the authority to reverse the pardon, one of 19 the White House announced Tuesday. But the Justice Department said it believed that the original pardon announcement was not binding and could be revoked because Mr. Toussie had not received formal notification of the president’s action. Mr. Toussie’s lawyers hope he might still be granted a pardon once the Justice Department completes a formal review.

In this effective post at the White Collar Crime Prof Blog, Ellen Podgor asks these astute questions as a follow up:

  • If they hadn't asked about political contributions previously, and had no knowledge of the political contribution at the time of granting this one, then why rescind this pardon? Do you rescind something just because it looks bad?
  • It sounds like the father made the contributions and not the son.  Do you rescind a pardon because of acts of a parent?  And should all people and their families who might be interested in obtaining a pardon need to beware of their contributions and not make any political contributions because it may result in a rescinded pardon if someone finds out about the contributions after the fact?

And, not surprisingly, PS Ruckman at Pardon Power keeps up his effective blogging on all these doings with new posts here and here, titled "Toussie Jammup: Sorry, I Just Don't Believe It" and "Can a President Revoke a Pardon He Has Granted?".

December 26, 2008 at 11:43 AM | Permalink

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Comments

Isn't this Marbury v. Madison, redux? The President signs a document, and then the President (allbeit a different one in Marbury's case) decides not to give effect to it.

If Toussie sued and, unlike Marbury, got the right court, shouldn't he get his pardon?

Posted by: | Dec 26, 2008 1:54:57 PM

To Anon on 12-26-08 at 1:54:57, I think a pardon is like a gift, in that it must be delivered, and accepted, to be effective. Like a gift, acceptance is presumed, because a gift and a pardon each confer a benefit on the recipient. I don't see any delivery here, from what I've read about it. If the pardon was delivered to the petitioner's attorney, I think that is a sufficient delivery to make the pardon irrevocable.

Posted by: Greg Jones | Dec 26, 2008 2:47:50 PM

The notion that a pardon has to be "delivered" to be effective is simply nonsensical. Once the president grants (by signing) something that the constitution gives him the authority to do, it is done. It cannot be UNDONE unless the constitution likewise provides such authority. It does not. The power to grant pardons does not include the power to ungrant pardons. If a president can ungrant his own pardon, what would prevent a succeessor president from ungranting the pardon of a previous president?

I'd love to see this case taken up to the Supreme Court... but I see all sorts of standing and "political question" issues regarding Article III jurisdiction that the Court would invoke to dodge the question. But that's a load of crap. Clearly the guy who had his pardon signed, granted, and then "taken back" has standing to sue the president, in his official capacity, for a declaratory judgment that the pardon is and remains effective, and cannot be "undone" by the president. The power to grant a pardon is completely disretionary with the president, but there is no discretion to UNGRANT it. Had the framers intended for the president to have such a power, they would have written it into the Constitution. Any "originalist" should have no qualms with my position.

The big lesson here, of course, is this: Do not give money to politicians. When you want a favor from them, they won't do it for fear of looking bad. Rather you have to pay lobbyists to act as a middleman. There should be a "pardon lobbyist" people can donate money to so as to not look like they're paying for clemency for themselves or their family members.

Posted by: BruceM | Dec 26, 2008 5:27:19 PM

Also, I've been advocating that once he takes office, President Obama pardon Bush and Cheney for all the crimes they've committed while in office, so as to end our long national nightmare. Since there's no way Bush and/or Cheney will actually be prosecuted, it would be a brilliant political move - take the high road while both implying and confirming extreme criminality and guilt and granting Christ-like forgiveness at the same time. What could Bush do, refuse such a pardon?

Maybe Bush is actually afraid of Obama doing this, and is trying to set a precedent that for Obama to effect such a pardon of Bush, Bush would have to physically receive the pardon (or whatever such nonsense he's claiming with respect to this Toussie case). Is Bush trying to set a precedent for when and how presidential pardons become effective? Is he trying to give himself a way to deny/reject a pardon granted by Obama for all the crimes Bush committed as president? "I, George W. Bush, reject the receipt of President Obama's pardon."

Once a pardon is granted, it is immediatey effective.

When an executive signs a repreive/commutation of a death sentence a few minutes before the execution, the execution does not continue until the defendant (now dead) receives the signed document from the president/governor. If Obama were to pardon Bush and Cheney, it would be done and there would be nothing Bush and Cheney could do about it, other than to argue with the straightest possible face that it was unnecessary because they believe that they broke no laws and committed no crimes.

Posted by: BruceM | Dec 26, 2008 5:38:57 PM

[I was anon who started these comments]

I agree with BruceM that delivery isn't necessary - just like the commission in Marbury that wasn't delivered.

And I too initially thought of a political question problem, but I went back and skimmed Marbury for any indication that there was any obstacle to relief other than the original jurisdiction problem, and I found none.

Posted by: B | Dec 30, 2008 4:58:06 PM

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