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January 2, 2009

How might Toussie clarify the status of his "revoked" pardon?

The Daily News is reporting here that the White House is saying that President Bush won't act further in the case of Isaac Robert Toussie, the real estate developer to whom President Bush last week first granted a pardon, and then sought to take it back.  Here are details from the piece:

President Bush's embarrassing pardon of Isaac Toussie won't be reinstated before he leaves office this month, the White House confirmed Friday.  After granting — and then reversing in a historic first by a President — the Brooklyn real estate scammer's pardon for a 2003 fraud conviction, Bush plans to leave the matter to his successor...

Bush spokesman Tony Fratto told the Daily News, "The President will not consider the Toussie pardon unless and until it has been reviewed by the Office of the Pardon Attorney" at the Justice Department.  A Justice spokeswoman said this week that U.S. Pardon Attorney Ronald Rodgers — who rejected Toussie's pardon petition last August because it wasn't up to snuff — won't even look at it until May, four months after Barack Obama is sworn in as President.

Reacting to this new PS Ruckman in this post speculates here that President "Obama might turn the Toussie pardon into a PR opportunity extraordinaire [by making the case a] springboard to a new day of pardon reform."  I doubt President Obama will want to come near this case , except perhaps to encourage Toussie's lawyer (who happen to be a former law school classmate) to consider litigating the status of his revoked pardon.

A few informed people have told me that a solid legal argument can be made that the pardon "vested," and thus could not be revoked, once the public announcement was made.  I suspect Toussie could have standing to seek a declaratory judgment that his pardon is still effective despite President Bush's effort to take it back.  If such a suit was brought after President Bush and his legal team leaves the White House in a few weeks, it is unclear exactly who would be eager to argue that the revocation was valid.

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January 2, 2009 at 07:55 PM | Permalink


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All Toussie needs to do is file a declaratory judgment action to declare his pardon valid. The Constitution does not give the president the authority to revoke pardons, only to grant them. Nor does the Constitution say anything about pardons only becoming effective upon their receipt and/or acknowledgment by the pardoned. Once the POTUS signs a pardon, it is immediately effective and irrevocable.

Of course Toussie has standing, and if there's any question about it, he could try to do something that his felony conviction prevents him from doing - registering to vote, applying for a job, something like that - and then he'd certainly have standing when denied on the theory that the pardon was revoked/never became effective.

He'd sue the POTUS in his official capacity, and I don't think it matters if the POTUS changes and becomes someone else - the new POTUS can either defend the "it never became effective" argument of his predecessor, or he can agree that the pardon became affective and consent to the declaratory judgment. I'd like to think Obama would do the latter.

Posted by: BruceM | Jan 4, 2009 1:08:31 AM

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