Toussie’s Pardon *Was* Signed, Sealed, Delivered, and Probably Accepted
posted by Brian Kalt
At his invaluable Pardon Power blog, Prof. Ruckman has done some very helpful reporting that, to my mind, strengthens Isaac Toussie’s case immensely. The professor and I have tangled over pardon revocability in the text and comments here and here. His latest post reveals the following:
1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”
2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.
3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.
4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.
5) There is no issue about whether Toussie accepted the pardon – he had asked for it and it was granted without conditions.
It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they “will be” pardoned “as soon as they get the individual warrant” (which may take weeks to arrive). The OPA always tell them they “have been” pardoned. No contingencies.
So far, the president’s argument has been that the pardons were still in some state of preparation–not yet a pardon, in essence–and thus could legally be halted. (Ruckman has labeled this argument foolish, and contended that pardons are revocable even when completed.)
Given that the facts Ruckman reports show that (1) the president signed a document saying he hereby gave a full and unconditional pardon to Toussie; (2) that that document was sealed; and (3) that the Office of the Pardon Attorney notified Toussie (or his counsel) that Toussie had been pardoned (not that he would be), I think it is fair to say that for all intents and purposes, this pardon had been signed, sealed, and delivered.
One might argue that Toussie hadn’t accepted the pardon, but I reject that conclusion given that he had gotten exactly what he applied for with no conditions attached (the offer was his, and acceptance was the president’s), and also given case law undermining the notion that pardons must be accepted. I also would be surprised if when Toussie or his counsel got the phone call, they didn’t accept it.
I do not agree with Ruckman that a pardon, once granted, can legally be revoked. But I do agree with him that the president’s argument in this case–that the Toussie pardon had not yet been granted–is foolish. I expect that there are a lot of people following this story whose thoughts paralleled mine. First, upon hearing that Toussie pardon had been revoked, I thought “what? you can’t revoke a pardon.” Then, upon hearing the claim that the pardon hadn’t been processed yet, I thought “well, maybe this wasn’t a pardon.” Now, upon hearing that it had been signed, sealed, delivered, and presumably accepted, I’m back to “what? you can’t revoke a pardon.” I hope that Toussie litigates this and that the court settles this once and for all.
Of course, there is still the matter of Ruckman’s argument that completed pardons can be revoked. His argument is backed up by examples that, while unlitigated and mostly old, are nevertheless numerous and undeniably there. (And, to Ruckman’s credit, they shoot down the callow media reports that Bush’s move was unprecedented.) If Toussie loses this case, that history will be why. But personally, for reasons I have posted already, I expect other arguments to prevail, and that the history to be relied upon by the dissenters, if any.
December 27, 2008 at 7:51 am
Posted in: Constitutional Law, Criminal Procedure, Current Events, Politics
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Responses (3)
Jack - December 27, 2008 at 5:21 pm
Brian,
If we fully accept the “deed” metaphor, the pardon was signed, sealed, “accepted” but not clearly delivered. If the President truthfully told Toussie that the President had signed a deed giving Toussie (gratis) Yellowstone National Park, that would not prevent the President from tearing up that deed, and thereafter correctly denying that Toussie ever gained any interest in the park. The argument for a physical delivery requirement would be that the pardoned person needs the piece of paper to get the benefit of the pardon–get out of jail, let the USDC know not to collect the fines, etc. Putting the beribboned parchment in the beneficiary’s hand is significant, because it is definitive evidence of pardon(compared to, say, an inmate’s claim that “I have been pardoned! I swear! Now let me out.”)
However, while I think that something has to be done to make a formally executed pardon effective–Presidents are allowed to sign a stack of papers first, and ask questions later, to catch a typo only after signing, to sign the wrong piece of paper by mistake–more than enough was done here to show that the pardon was a definite decision, rather than preparation in advance of a possible course of action.
Jack
Jon Steinsapir - December 28, 2008 at 2:55 pm
It seems like everyone is ignoring an obvious, and possibly extremely fruitful, source of authorities on this question — the state courts. As I understand it, most governors of American states have a similarly unchecked pardon/commutation power with respect to state crimes as the President has with federal crimes. I would guess that there are state cases addressing these issues. Sme governor I am sure has purported to revoke a pardon, and I would not be shocked if a convict then challenged the purported revocation.
A.W. - December 29, 2008 at 1:59 pm
I’ll say this as one of the last people who support Bush. I mean besides the people supporting Bush’s policies in all but name now that they are Obama’s…
You’re not being cynical enough. This isn’t about actually revoking the pardon, but cya because of the payments. which isn’t to say that the whole thing is corrupt, but just that I doubt they really care very much if it is successfully revoked or not.
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