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December 25, 2008

Some more thoughts about the latest ugly Presidential pardon snafu

Thanks to President Bush's bizarre clemency work this week, my e-mail in-box has been a bit too busy for what was supposed to be a day off. I was given permission to reprint this extended and thoughtful set of reactions from a thoughtful reader:

I am surprised at the White House's extraordinary and unprecedented attempt to revoke the pardon granted on December 23 to Robert Toussie.  I say "unprecedented" because no president has ever attempted to revoke an unconditional pardon duly granted after it has been delivered to its intended recipient.

Certainly the pardon in Toussie's case was properly granted by the President when he signed the formal pardon warrant.  But the question is whether it was "delivered" to Mr. Toussie. In its public statements the White House seems to be saying that the Toussie's pardon was not yet effective because a document evidencing the grant had not yet been sent to him by the Justice Department.  But I don't see why any particular form of delivery is constitutionally necessary to make the pardon effective.  The 19th century cases in which a pardon document was intercepted on the way to the warden at the prison are just not apposite in this situation, where the pardon was announced by the President himself in a press conference for all the world to hear (presumably including Mr. Toussie himself).  If more were necessary by way of delivery, probably someone from the Pardon Attorney's office had already called Mr. Toussie on the phone (assuming they had his number, the application not having been docketed) to give him the happy news of the President's action.

I gather from Dana Perino's comments at the press conference yesterday that Mr. Toussie's case has been referred to the Pardon Attorney, but it is not clear what that individual is supposed to do with it.  Should he grant Mr. Toussie a waiver, to allow him to apply before the 5-year eligibility period has run?  Should he expedite the ordinary pardon investigation, which ordinarily takes at least 18 months?  I say that all this is beside the point, because at this point Mr. Toussie has already been pardoned.

There are a lot of questions to be asked here:  For starters, where was the Pardon Attorney?  We know from White House statements that DOJ did not investigate or make any recommendation on the Toussie application because he was not yet eligible under applicable OPA housekeeping rules, and that he secured his pardon through an end-run around the DOJ process straight to White House Counsel.  This end-run in turn was evidently facilitated by a recent alum of the White House Counsel's staff now working at a private law firm, with the predictable disastrous results for the President. Shades of Marc Rich.

And speaking of Marc Rich, one might well ask why the Pardon Attorney did not make at least some effort, once he saw Toussie's name on the list of those to be pardoned, to flag the serious political problems with the grant before the warrant was signed by the President.  The Pardon Attorney is the one who prepares the warrant for the President's signature, so he must have seen the unfamiliar name on the list, just as the former Pardon Attorney Roger Adams saw Marc Rich's name on the list sent from the White House on the final night of President Clinton's term, and tried his level best, though without success (or any help from his political superiors) to stop it.

Which in turn leads me to ask, where were the Pardon Attorney's political superiors in all of this?  Was the Deputy Attorney General not working closely with the White House in connection with any pardons that the President might be contemplating at the end of his term?  Why was the President once again, as at the end of the Clinton Administration, left home alone by his own Justice Department appointees?

The unhappy episode of the Toussie case raises the question why there was not more of an effort by the Bush Administration to remedy the problems with the pardon process in DOJ that were responsible for the breakdown of the pardon process at the end of the Clinton Administration.  Now that yet another President has been embarrassed by the lack of a reliable and accountable system for administering the power in DOJ, maybe the Obama Administration will do what needs to be done to ensure that the President's Article II power can once again be exercised with integrity, efficiency, generosity, and a sense of purpose.  In order to do that, however, one must first take the power seriously as an instrument of government, not simply a perk of office.

December 25, 2008 at 04:39 PM | Permalink


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I can understand the reaction many people are having concerning the President's revocation of Mr. Toussie's pardon. If one has a problem with the President, this is a great opportunity to take a shot at him. Its yet another "snafu" from this administration. But perhaps the President is doing the right thing here. Perhaps people within the administration were trying to do for Mr. Toussie what was done for Mark Rich in the Clinton administration, helping out a well-connected donor. While I am also inclined to dismiss this rather lame duck President and hope the door does not hit him on the way out, I admire the President's decision to revoke the pardon once he learned more of the facts surrounding Mr. Toussie. I wished the President had gotten it right the first time, but the fact remains that the President got it right. Rather than heap scorn on the outgoing President, I give him some praise for willing to take the political heat to ensure that at least some pardons are not handed out because political donations were made.

Posted by: Michael | Dec 26, 2008 12:44:48 AM

The president has the unquallified right to pardon anyone. Where does the 5-year rule come from? Not the Constitution. It certainly did not apply to Scooter Libby. It is a smokescreen for Bush to hide behind to recind the granted pardon. Bush still doesn't do his homework!

Posted by: layperson | Dec 26, 2008 1:18:40 AM

I am a former criminal defense attorney and I am furious that this President has made a mockery of the civil and predictable application of our Nation's laws in this case. I would like to find some way to challenge the revocation of this as ineffective not for Mr. Toussie's sake but to prevent this sorry episode from becoming some bizarre precedent in the Pardon process. If the pardon was granted as unconditional then how could it be revoked ? Would it not have first to be conditional ?

Posted by: Thomas Barton, J.D. | Dec 26, 2008 9:20:24 AM

"If the pardon was granted as unconditional then how could it be revoked ? Would it not have first to be conditional ?"

Its George Bush you're talking about. He has a knack for twisting laws and the constitution and reinterpreting them in ways to justify anything he needs done.

Posted by: Mark | Dec 27, 2008 2:41:04 AM

Not-too-subtle Republican trolling, Michael. Way to stay on message.

Posted by: Gray Proctor | Dec 27, 2008 9:18:30 AM

"Not-too-subtle Republican trolling"

Bush trolling not Republican trolling. Even the Repubs seem to be shunning Bush these days.

Posted by: Mark | Dec 27, 2008 3:49:43 PM

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