A Test of the Power to Unpardon

By George Lardner Jr.
Wednesday, January 14, 2009

The most important step George W. Bush has taken with the presidential pardon power came last month, when he repudiated it.

On Dec. 23, he granted clemency to a sordid Brooklyn developer, Isaac R. Toussie, who had pleaded guilty to real estate fraud, and when details of the case came to light -- Bush had acted on the recommendation of the White House counsel, without the knowledge of the Justice Department's pardon attorney -- the president washed his hands of the situation and withdrew the pardon one day after signing it.

The about-face has sparked questions about whether there was precedent for Bush's action and whether it could stand. It's a debate the courts, which have been weighing in on the supposedly untouchable pardon power for more than 150 years, should be happy to settle. And if judges have any regard for history, they will side with Bush.

Some presidents have revised pardons and issued new ones that were more suitable for recipients. Some have voided other pardons because the conditions attached to them were not met. To be sure, there is scant precedent for Bush's flat revocation. But one case is strongly in his favor:

It involved Ulysses S. Grant's revocation of highly suspicious pardons that President Andrew Johnson granted on his last day in office to a double-dealing father and son involved in New York City whiskey scandals in which Johnson himself was, at best, an unwitting ally. Johnson had even welcomed the father, known as "a notorious blackmailer," to the White House as part of a delegation of crooks who sought to oust the U.S. attorney in New York on grounds of corruption. The New York Times protested: "[I]ndividuals accused of crime are summoned to Washington for the express purpose of making charges against the Government officers whose duty it is to prosecute them."

Johnson sided with the crooks, granting Jacob and Moses Depuy pardons as "properly authorized agents" of the government. Three days later, in his first exercise of the pardon power, Grant ordered the pardons "canceled" if the Depuys had not yet been released. They had not been, and the pardon papers were returned to the White House. Grant then ordered that since the pardons had "not been delivered to, and accepted by, the said Jacob and Moses Depuy," the grants were "revoked and withdrawn."

The Depuys protested in federal court, arguing that Marbury v. Madison showed that the pardon was complete once it had been signed by the president and the seal of the United States affixed. Delivery, in that case, had been held to be a purely ministerial act. That proposition is being echoed now on behalf of Toussie -- but the same chief justice who ruled in Marbury, John Marshall, repudiated the proposition in regard to pardons. In 1833, Marshall held that a pardon was a deed "to the validity of which delivery is essential and delivery is not complete without acceptance." The judge in the Depuy case recognized that these were "directly antagonistic rulings" by the same justice, but since one came long after the other, he said had no choice but to hold that delivery is essential.

The Depuys did not appeal, and the ruling stood as the only precedent until 1915, when the Supreme Court embraced Marshall's doctrine in U.S. v. Burdick, ruling that a New York newspaper editor who had been given a pardon to force him to testify before a federal grand jury did not have to accept it. The court held that acceptance of a pardon is an admission of guilt and could not be required of an unwilling recipient. Burdick made Marshall's widely accepted pronouncements the law of the land. A subsequent ruling made it inapplicable for commutations, -- which can be forced upon a prisoner -- but delivery is still essential for pardons.

Unfortunately, the Toussie case underscores the clumsy and dangerous ways in which the pardon power has come to be administered. A downhill slide began with President Dwight Eisenhower, who was too busy, or found it too tiresome, to sign individual warrants for each grant of clemency. He instituted the practice of signing "master warrants," lumping a bunch of names together without offering any reason, as many presidents used to do, for the pardons. The Justice Department offered no objections. So what if Burdick was still the law? The Office of the Pardon Attorney began acting as though it were acceptable to notify a grantee by phone and to follow up weeks later with a letter. Delivery of an individual warrant, even a master warrant with the recipient's name on it, went out the window. The recipients, of course, were happy to be pardoned.

In Toussie's case, the president was not happy, just as Grant had not been. The pardon was recommended by White House counsel Fred Fielding, who didn't bother with the customary Justice Department review. The risks should have been plain from the scorn sparked by Bill Clinton's last-minute pardons. And the usual reviews by the U.S. attorney and the FBI would surely have turned up the enduring resentments of the clients Toussie bilked, if not the financial contributions his family made to Republican causes after his brief prison term.

Evidently startled by the anger the pardon stirred, Bush called it back for review by the pardon attorney. The White House said the president and Fielding were unaware of the political contributions that raised "the appearance of impropriety" in the decision. I, for one, am hoping the revocation sticks and results in a lawsuit. There have been telephones throughout government since Grover Cleveland's day, but until Ike came along, no one would have dreamed that making a call or reading a bunch of names at a news conference constituted "delivery." It would be interesting to see whether the courts uphold the law or the slovenly habits that have made it so hollow.

The writer, a former Post reporter, is an associate at the Center for the Study of the Presidency. He is working on a history of the presidential pardon power.

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