By Brian C. Kalt
Monday, January 26, 2009
The Jan. 14 op-ed by George Lardner Jr., "A Test of the Power to Unpardon," lauded President George W. Bush's attempt to revoke a pardon he granted to New York real estate developer Isaac Toussie last month. Lardner argued that precedent and history back the president's action and establish that until a pardon has been delivered, a president can pluck it away.
As a law professor who has written on pardons, I have been following and commenting on the Toussie case as well. My conclusion: Lardner is wrong at nearly every turn. There is no precedent sufficient to validate Bush's revocation of Toussie's pardon. Delivery and acceptance are not required to make a pardon effective. Even if they were, Toussie's pardon was delivered and accepted.
Once issued, a pardon is a pardon. That's that. Using pardons, the president of the United States has the power to lift criminal consequences from people. The president does not, however, have the power to reimpose them unilaterally, which is what a pardon revocation would do. As a result, Bush could not -- and did not -- argue that he could revoke Toussie's pardon. Rather, he would have had to establish that Toussie was never really pardoned in the first place.
It would be hard to make that case. As president, Bush signed and sealed a master warrant that included Toussie's name and stated: "After considering the applications for executive clemency . . . I hereby grant full and unconditional pardons to the following named persons." The Justice Department announced the pardons to the world. The recipients (or their lawyers) were contacted by phone, told that they had been pardoned and accepted the pardons. This sounds quite final.
Lardner wrote that "there is scant precedent for Bush's flat revocation," which is true. Although there are several examples (most of them quite old) of presidents revoking pardons, I am unaware of any in which the pardons had been signed, sealed, communicated and accepted, as Toussie's was. More important, none of them produced any Supreme Court precedent. The legal slate for this kind of pardon revocation is essentially blank.
Lardner does note an 1869 district court case, In re De Puy, in which a judge ruled that a pardon must be delivered before it is effective. But De Puy is easily distinguishable. First, Toussie's pardon was delivered and accepted. Second, the De Puy pardon was conditional upon the payment of a fine, and that condition had not yet been fulfilled; Toussie's pardon was unconditional. Third, and most important, the vision of the pardon power in De Puy is inconsistent with later decisions by higher courts. Modern decisions step away from the old notion of pardons as "acts of grace." The Supreme Court no longer sees pardons as coming from a king-like president, who confers a royal deed (or not) to a loyal subject. Rather, the court has established that pardons are unilateral policy decisions made by politically accountable executives.
In other words, the president issues pardons, and the president takes the heat for them if they are ill-advised. If that's going to be a problem for him, he should think it through before he signs and seals the thing. The problems with Toussie's pardon -- that his father had been a generous Republican contributor and the continued resentment of those he defrauded -- were knowable before Bush acted. Though George W. Bush may wish otherwise, the Constitution does not provide a "remorse exception" to the pardon power.
The only argument the White House offered is that Toussie never received a paper copy of an individual warrant from the Office of the Pardon Attorney. All indications are that the administration cooked up this theory for this case. The master warrant that Bush signed and sealed did not say that he was ordering the pardon attorney to issue individual pardons on his behalf. It said that the people on the list were hereby pardoned. When the office called the recipients, it didn't tell them that the pardon was in the mail; it told them that they had been pardoned. And they accepted.
There is ample precedent against Bush's theory here. For instance, when President Jimmy Carter pardoned the Vietnam draft evaders, they did not get individual pieces of paper. But there is a more recent, and more fitting, example:
On his way out of office, President Bill Clinton pardoned more than a hundred people, including his brother, his longtime associate Susan McDougal, former housing secretary Henry Cisneros and, infamously, the financier Marc Rich. Because of the volume of Clinton's last-minute pardon jamboree, there was no way to deliver all of the individual warrants before George W. Bush took office. Some of them still have not been physically delivered.
But as president, Bush never purported to have the power to revoke any of these pardons. Surely he would have unpardoned Rich if he could have. And if Bush were right about Isaac Toussie, then he could have unpardoned both him and Rich. But he wasn't, and he couldn't.
It would be nice if the Supreme Court ruled definitively on this point. Ideally, Toussie will take this matter to court. If and when the Supreme Court takes the case, I am confident that it will declare that President Bush was wrong.
The writer is an associate professor at Michigan State University College of Law.