President Bush Revokes Pardon of Isaac Toussie
posted by Brian Kalt
As this MSNBC story and this CNN story detail, President Bush pardoned real estate scammer Isaac Robert Toussie, and then revoked the pardon a day later (today).
It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.
I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had not performed. But I see no reporting on that either. It just looks like the president issued a pardon and then un-issued it.
President Bush actually referred the matter to the Office of the Pardon Attorney for further consideration, so it is possible that Toussie will get his pardon back. One can imagine that Toussie and his lawyers might not want to challenge the president’s revocation if they still hope to get something from him. Since Toussie is probably the only one with standing to argue the constitutional point, though, the only way to answer the revocability question is for Toussie to challenge the president’s action in court. From the CNN story, though, it doesn’t sound like that is going to happen.
Strange days indeed.
UPDATE: According to the official White House statement, President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn’t final.
Marbury v. Madison famously held that a presidential appointment need not be delivered before it is effective, but as this helpful blogger notes, pardons are different from appointments in the Supreme Court’s eyes:
There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall’s in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official’s commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:
A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’
Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:
President Andrew Johnson’s offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy’s agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. . . . Indeed, President George W. Bush’s administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.
This takes a good deal of the wind out of the sails of the arguments that Toussie might make. But not all of the wind. Wilson dealt with someone who didn’t want to accept the partial pardon the president had given him; the Court let him refuse it (a conclusion that I have questioned elsewhere in light of subsequent precedent, but let’s accept it arguendo). DePuy dealt with someone who had a conditional pardon, which condition he had not yet fulfilled when the pardon was revoked.
In Toussie’s case, he wanted the pardon. He had applied for it and (I think) gotten everything he had asked for. Wilson is thus inapt. There do not appear to have been any conditions placed on Toussie’s pardon; DePuy therefore does not control. Toussie’s pardon thus seems to be final in a way that Wilson’s and DePuy’s pardons were not.
However, Marbury adds another wrinkle. A commission, Chief Justice Marshall wrote, does not to be delivered to be valid, but it does have to be sealed (in that case by the secretary of state). Here, if the president sent a sealed document to the pardon attorney, ordering him to deliver it to Toussie; or if the president sent an unsealed document to the pardon attorney, who then sealed it but didn’t deliver it, Toussie still has a good argument that the pardon is final. If the document was not yet sealed when it was revoked, his case is much weaker.
December 24, 2008 at 8:59 pm
Posted in: Constitutional Law, Criminal Procedure, Current Events
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Responses (10)
Michael Wasserman - December 25, 2008 at 5:14 pm
Notwithstanding Judge Blatchford’s opinion in De Puy and Chief Justice Marshall’s dictum in Wilson, it seems to me that once it is made, a pardon–like all grants of the sovereign–is a matter of record and requires no delivery to be complete. See, e.g., R. v. Miller, 2 Bl. 798 (K.B. 1771).
In 18th century England (and before), royal clemency was an integral part of the criminal justice system because so many crimes were capital and the judges had no discretion in many cases, but to recommend the crown grant a pardon following sentence. In Miller, the method by which clemency was granted is incidentally illustrated. The pardons were issued as periodic lists. Pending the issuing of a list, the King would signify an intent to allow a convict his pardon by signing a paper. The paper under the “sign manual” was not a record, but it was sufficient to respite the sentence until the pardon was executed.
Thus, in Miller, the defendant had been sentenced to transportation. Subsequently, the King signified his intent under the sign manual to grant a pardon on the condition that the defendant undertake to transport himself out of England. Thereafter, the defendant being found in the realm, he was prosecuted. He offered to prove the sign manual (which by clerical error omitted part of the condition, so that his being in England was not a violation of the condition). The court held that he should be allowed to prove the sign manual in his defense, stating that “though no pardon, but revocable by the King, it was an authority for the judge to bail him.”
Possibly, the act announced by the White House on Monday could be construed as merely signifying an intent to grant a pardon to Toussie. (If that is so, then we should deem Marc Rich to have been pardoned by Bush, since Rich’s particular warrant of pardon–as opposed to the master warrant signed by Clinton–surely issued under Bush’s watch.) But contra De Puy and Wilson, it seems to me that whether any record (or copy) has been delivered to Toussie is wholly immaterial.
Brian - December 25, 2008 at 7:48 pm
I understand this question reveals my regrettable ignorance, but what does “sealed” mean in the context Mr. Kalt uses it? I’m taking it as a term-of-art, and not literally as meaning “fastened shut.”
Brian Kalt - December 25, 2008 at 11:06 pm
By “sealed,” I meant formalized. The “seal” in this case would be more like a stamp than a fastener.
At some level, the Constitution leaves it up to the president (and outside of judicial review) to declare what separates a piece of paper on which the president has idly scribbled “Isaac Toussie is pardoned” and a piece of paper that actually constitutes a pardon for Isaac Toussie.
In addition, Congress might be able to legislate what the president would do to formalize a pardon, assuming that the requirement does not infringe on the president’s constitutionally unilateral authority.
Anon - December 25, 2008 at 11:18 pm
The president’s and DOJ’s current position that a pardon is not effective until the Pardon Attorney (a low-level civil servant) “executes and delivers” an individual pardon warrant to the grantee is a stunning reversal of decades of settled practice.
Until the 1950s, the president signed an individual warrant in each pardon case. The original was typically sent to the grantee and the Pardon Attorney retained a copy. Then, strictly as a matter of convenience, the practice of using a “master warrant” with a list of names was instituted under Pres. Eisenhower, so that the president would only have to sign a single document when granting a group of pardons. Since the original master warrant could not be given to each recipient, the Pardon Attorney began the practice of retaining the master warrant and preparing individual warrants signed by the Pardon Attorney that attested to the president’s act, which were mailed to each grantee. But it has always been understood that the operative act is the president’s signature on a warrant (just as it had been before the institution of the master warrant), and that the Pardon Attorney’s preparation of an individual warrant is a purely ministerial act with no legal significance. This is also the position taken by the former Pardon Attorney in 2001, when he testified before the Senate Judiciary Committee about the Marc Rich pardon.
Moreover, the reliance on U.S. v. Wilson, which was subsequently cited in Burdick v. United States, 236 U.S. 79 (1915), is equally misplaced, in my view. In Burdick, the President tried to foist a pardon upon the prospective grantee, in order to coerce him into testifying in a grand jury. In that case, the court said Burdick had a right to reject the pardon, but that could take place only after the terms of the grant were “communicated” to him. Here is the money quote, which was lifted from the Wilson decision: “A private deed, not communicated to [the grantee], whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted on.”
The court appeared to assume that actual delivery of a piece of paper was the only reliable and widely avilable means of communication, perhaps not an unreasonable assumption in 1915. It was almost certainly correct when Wilson was written in 1833. But the gravamen of the court’s concern was that the grantee know the terms of the grant so that he or she could make an informed decision about whether or not to accept the grant. The Constitution says absolutely nothing about the mechanism by which the pardon power is made operative. There is simply no constitutional reason why other means of “communication” can’t be used if they are sufficiently reliable. The technology of the communication can’t be the operative point. That’s like saying the 4th Amendment doesn’t apply to electronic surveillance because such technologies didn’t exist in 1791.
Also, notice that none of the concerns that animated the Burdick court are present in the Toussie case. Although his pardon application was rejected by the Pardon Attorney as premature under DOJ’s rules, Toussie definitely asked the president for a pardon. There is no suggestion that this is something that was forced upon him. Moreover, the grant was expressly “a full and unconditional pardon.” Thus, there were no special conditions for Toussie to accept or reject, and there is obviously no reason to think that he didn’t readily accept the pardon when he was informed about it.
Further, the purpose behind the delivery rule — to make sure the prospective grantee is on notice of the grant and its terms, so that it can be accepted or not — was fully satisfied. Bush signed the master warrant, delivered it to DOJ, and instructed them to notify the grantees that they had been pardoned. DOJ notified Toussie that he had been granted a pardon, and the Dept then issued a press release publicly announcing the grant, which was widely disseminated in the press. There is no serious dispute that Bush intended to and did grant Toussie a full and unconditional pardon, and that this fact was communicated to Toussie. On these facts, the insistence on actual physical delivery of a pardon warrant, in my opinion, is the flimsiest of formalities, since none of the concerns that underlie the delivery requirement are present.
The fact of the matter is that the president made an ill-advised grant, because he relied on the word of a former member of his Counsel’s Office and failed to vet the case through the normal investigative and advisory channels. In my view, the grant was a done deal when Bush signed the warrant and Toussie was notified of the grant. Then, more than 24 hours later, Bush started cravenly looking for a way out of the mess he had created, even if it is entirely unprincipled.
P.S. Ruckman, Jr. - December 26, 2008 at 1:30 am
I also understand the President’s position to be that, at the time of the signing of the master warrant, he was not properly informed. I could easily imagine, later, “misinformed” being pushed close to the neighborhood of “mislead,” if need be. In that case, there is another defense for revocation wholly separate from the delivery/acceptance problem. Best,
Brian Kalt - December 26, 2008 at 7:38 am
Anon,
That is very helpful information, particularly your second paragraph. For me, the White House’s delivery argument is a non-starter, but the execution part has more to it. If (as you say) the president is executing the document and the OPA is just copying and mailing it then (as I say in the last paragraph of my post) Toussie should win.
James Grimmelmann - December 26, 2008 at 9:33 am
Let the record reflect that “this helpful blogger” is U. Miami lawprof Michael Froomkin.
Brian Kalt - December 26, 2008 at 10:33 am
James,
Thank you. I certainly should have said it that way.
Dave Matthews - December 26, 2008 at 11:16 am
I think there’s a key passage from Biddle v Perovich (1927) that has gone unmentioned:
From the majority opinion, Justice Holmes:
“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”
(emphasis mine, of course)
http://supreme.justia.com/us/274/480/case.html
The key determining factor, then, is the “determination of the ultimate authority” (the president) as to how the “public welfare will be better served.”
Using that line of reasoning, it seems clear to me that Bush is well within his presidential powers to rescind a pardon before it has been delivered. It is his determination as “the ultimate authority” that, in this case, the public welfare would not be better served by inflicting less than what the judgement fixed.
In other words, it’s not a game of “gotcha,” or a Christmas present from the President; it is the President’s determination of what best serves the public welfare. In this case, the President has clearly stated his determination that a pardon would not best serve the public welfare.
Also, as to the (historically) unprecedented nature of rescinding pardons, President Grant rescinded several pardons issued by President Johnson, after execution and before delivery:
http://pardonpower.com/2008/12/on-revocation-of-pardons.html
Dave Matthews - December 26, 2008 at 11:40 am
I should have said Grant issued several, not just DuPuy. Among those rescinded was at least one (Richard C. Enright) that was a full and complete pardon (with no conditions.)
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