More on the President’s Attempt to Revoke the Toussie Pardon

Following up on my earlier post, I have some more thoughts on the Toussie pardon. I originally cited some thoughts by Michael Froomkin. Froomkin has a follow-up post in which he, in my opinion, gives up too easily.

The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual.” It didn’t say that Bush started the process of pardoning them. It said he pardoned them, because that’s what everyone understood was happening. Without knowing exactly how these things work, I can’t assume that Toussie got a phone call, formally communicated his acceptance, or what, but maybe he did. In any case, there was a whole day there in which he and the rest of the word knew that he had been pardoned.

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn’t purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Indeed, all of the commentary has referred to this as a pardon that was issued and then revoked. But pardons can’t be revoked. So the White House needs another theory. Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn’t hold up. First of all, it describes the president as accepting the recommendation to pardon Toussie. Then, it concludes by describing how the president is going to now have the Office of the Pardon Attorney review Toussie’s case, because he “believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.” But the president already had that opportunity, and chose not to take it. If President Bush believed that the OPA should have had a chance to review, say, the Marc Rich case, then he could have set up his OPA process that way. But surely, if he thought he could reach back and hold up the Rich pardon the way he did the Toussie pardon, he would have done so.

In any case, if I were Toussie (the only person with standing to challege the president’s action here), I would fight this. I think that it is pretty unlikely that Bush is going to re-do the pardon. Nevertheless, there is no point litigating the issue until after January 20; as long as the OPA is sitting on the question, there is a ripeness issue that would not be worth adding to an already complicated situation.

But once President Obama takes office, one can assume the application will be rejected, if it hadn’t been already. Then Obama’s administration will have to defend the revocability of the pardon. One might expect a spirited defense, under the old “let’s not cede any authority we may have” doctrine. Then again, Obama could argue in favor of the president’s power to issue pardons that take effect immediately, rather than ceding that power (and, ironically, watering down the unitary executive theory) as Bush has purported to do here. Further, the Obama Administration could make the more political argument that do-overs raise political convenience over the care and diligence that the Constitution expects of the president here.

To be sure, there is a Gilded Age history of revoking pardons that the initial press reports missed. But the more modern precedents on the nature of the pardon power, not to mention modern communications, suggest to me that Toussie has a good case here.

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5 Responses

  1. I cannot accept the attempt to dismiss the previous revocation of pardons as “Guilded Age history” for a variety of reasons.

    First, to continue to say pardons (today) cannot be revoked in absense of any clear, direct authority suggests (to me) that bias may be driving your analysis. Second, anyone who has seriously researched pardons knows the best information can be gotten in the period 1789 to 1932, before the DOJ stopped reporting on individual pardons. As a result, we cannot say that the lack of “more recent” examples (is any example recent enough?) is a function of there being no such examples. The lack of more recent examples, so far as we know, is a function of a lack of information.

    From my perspective, if I just casually glance through pre-1932 data and spot a half a dozen examples of something, I am pretty comfortable guessing there are other examples pre- and post- 1932. Now, if I have clear, direct evidence that the case is otherwise, then that is a different story.

    What are the “modern precedents” which clearly say a pardon cannot be cancelled? Do tell.

  2. Brian Kalt says:

    Prof. Ruckman,

    I’m posting this here and as a comment to your post at Pardon Power.

    Your knowledge of and access to one sort of precedent (individual pardons) is obviously superior to mine. Nevertheless, I hope I can respond without angering you further.

    First, regarding your suggestion of bias. I don’t understand who you think I am biased for or against here, but the reason that I continue to make my arguments is simply that I have a certain view of the pardon power. There is no clear, direct case law to support me, and there is none against me either. Correct me if I am wrong, but none of the revocations you cite were challenged in court, let alone affirmed there.

    Now certainly, the fact that you have a lot of examples–and not all of them “Gilded Age”–is entitled to considerable weight. But it doesn’t close the book. There are certainly examples in other contexts of courts calling precedent practices into question, particularly during periods when the court is feeling formalistic.

    Second, you say the lack of examples of pardon revocations since 1932 is the result of a lack of information, because DOJ no longer reports on individual pardons. I certainly agree that here, “absence of evidence is not evidence of absence.” On the other hand, it doesn’t prove the opposite either. I found it interesting that your examples in the blog post I linked to were in the 1860s, 70s, and 80s. What happened between 1881 and 1932, then? I don’t know–maybe you have examples from then too–but maybe there were shifts in bureaucratic processes or in the understanding of the pardon power. Any such differences would surely be parsed very closely by lawyers for Toussie, the White House, and the courts in any litigation over this issue.

    As for the more modern precedents, as I tried to make clear in my original post, I am talking not about precedents of pardons that presidents tried but failed to cancel (obviously if there were any such precedents, there’d be little to blog about here). Rather, I was talking about “precedents on the nature of the pardon power.” And by that I meant Biddle as compared to Burdick, on the question of whether a pardon must be accepted. I meant Schick as compared to Wilson on the nature of the pardon power.

    Schick suggests to me that Congress could not set up a statutory procedure that makes a president jump through a bunch of hoops before his pardons can be effective. The question then becomes, at what point has the president bound himself?

    You ask, “What are the ‘modern precedents’ which clearly say a pardon cannot be cancelled?” Do you in fact disagree that there is a point at which a pardon is a pardon, and cannot be cancelled? Or do we agree that there is a point at which it becomes effective, and we are just disagreeing where that point is?

    Finally, I am intrigued by your 1972 example, in which you say “Attorney General Richard Kleindienst signed a clemency warrant, as was commonly done, ‘by the direction of the president.’ The full and unconditional pardon was not supported by the U.S. Pardon Attorney. . . . Both the warrant and the pardon that it ordered were voided. The pardon was not granted until December 5, 1973.”

    With the same caveat as before (the court cannot reject a revocation that was not litigated, and so this precedent, while significant, is not as weighty as one that made it into court), and deferring to your greater familiarity with that case, I’ll just ask this. Why was it voided?

    If (1) Nixon had formally signed off on the request; or (2) formally delegated general authority to the AG to act on his behalf, and if Kleindienst was acting properly according to either sort of authorization, then I’d concede that that precedent is indeed very harmful to Toussie’s case.

  3. Brian,

    No “anger” here. Although your use of the phrase “to be sure” (in your original post) seemed unnecessarily belittling. I don’t think those examples were “sure” at all, much less an “Age” of examples. Every news organization in America called the revocation “unprecedented.” I don’t recall you or any other person in America – other than myself – coming up with examples to the contrary, certainly not any more than the DePuys. And, right now, I am guessing you cannot come up with a single additional example yourself. That doesn’t sound like a “sure” scenario to me, or a well known “Age” of scenarios. It sounds like I made a valuable contribution to the dialogue on this topic that should be appreciated by the intellectually curious.

    Thank you for saying what really needs to be said right now, over and over and over – there is “no clear direct case law” to “support” your position on revocation of pardons.

    That being said, yes, we can ignore historical examples of presidents revoking pardons, dozens, or perhaps hundreds of them. Sure. And, as we find each one, we can distinguish and qualify and continue to sail the ship because there is no case law “against” your position either. But, as a political scientist, I can’t go for that ride.

    I cannot explain the lack of information problem in pardon research any better than I already have. So I will not try. But you are right. If 60,000 pardons were revoked pre-1932, that does not “prove” it happened a single time after 1932. I cannot disagree with that at all. Indeed, that is exactly why I made only a casual glance through the data. Because I knew before I even started that it really would not matter how many examples I found.

    I ran into a similar situation with Marc Rich. He was a fugitive from justice. Everyone wanted to call that situation “unprecedented” – because it makes for a good headline and sells papers. I think I found (again, very casually glancing), in Annual Reports of the Attorney General, about one pardon of a fugitive every two years, from the late 1800s to 1932. I felt comfortable guessing I had missed some. And I also felt comfortable guessing the practice did not suddently stop in 1932 and then pick back up again with Bill Clinton. But that is just me.

    Do I think “there is a point at which a pardon is a pardon and cannot be cancelled?” No. My knowledge of clear, direct case law and history tells me otherwise. Do we “agree that there is a point at which it becomes effective?” Probably not, but I don’t really have the strong sense that that matters a great deal.

    Intrigued by my 1972 example? Of course. But the point is this: it doesn’t matter. You seem to have bought into a net interpretation of Court opinions which do not address this issue. And that is fine. But I would insist that we keep a nice separation between normative analysis (how the law should apply to this case) and empirical analysis (what presidents have actually done and what no court has disallowed). Instead of saying “pardons cannot be revoked” (which sounds snappy, I admit), you should take more care to say, “I don’t think pardons should be revoked any more given my interpretation of Supreme Court opinions which do not address this issue.”


  4. Brian Kalt says:

    I have posted a lengthy response to Prof. Ruckman in the comment section of his blog post.

  5. Bruce Boyden says:

    I think the fact that this controversy has arisen during the very month an expert on pardons is guest-blogging on Concurring Opinions is evidence of a massive conspiracy that needs to be looked into. What did you know, Brian, and when did you know it?

    P.S. Ruckman: Do I think “there is a point at which a pardon is a pardon and cannot be cancelled?” No. My knowledge of clear, direct case law and history tells me otherwise.

    It can’t be right that there is no point at which a pardon cannot be cancelled. Could Obama cancel all of George Bush’s pardons? Could he reach back and cancel pardons issued 20 years ago? And if he can’t do it, how is the current president any different? The powers belong to the office, not particular holders of the office. I don’t think either Obama or Bush can cancel Bush’s issued pardons, and if you want a legal argument for it, here’s one: there’s no power granted to presidents in the Constitution to cancel pardons. Presidents only have the power to issue pardons. I am not a strict textualist, so I would agree that a prevalent practice of cancelling pardons could evidence a general societal understanding of the pardon power that includes unpardoning power, but I don’t think a handful of obscure examples from the 19th century (and one obscure one from 1972) accomplishes that. The fact that the President has done it does not mean it is not illegal.