Author Archive for brian-kalt
Tim Geithner and Tom Daschle Are No-Goodniks
posted by Brian Kalt
I have enjoyed my visit at Concurring Opinions, but alas, my time is up and this will probably be my last (and maybe least) post.
I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because none of the candidates who paid their taxes correctly were good enough for the job.
Now, Tom Daschle is facing similar issues. Nominated for Secretary of Health and Human Services, he amended his last three years’ worth of tax returns. Upon further reflection, he realized that he had failed to report hundreds of thousands of dollars in income, and that he shouldn’t have claimed some of the deductions that he took. He wrote a check for $140,000 and is now hoping for the best. It apparently wasn’t very challenging to get it right the second time around; why couldn’t he have had his “people” be equally careful in the first place? The most obvious reason is that nobody was watching then.
I agree with the idea that you can gauge how ethical someone is by how they behave when they think nobody is watching. Given the difference between how Geithner and Daschle behaved before and after people were watching, I think that they both fail the test.
I’m in a self-righteous mood about this right now, because I am doing my taxes this week and I found some old mistakes.
January 31, 2009 at 10:35 am
Posted in: Current Events, Legal Ethics, Politics, Tax
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The Best Way to Give D.C. a House Seat Is Also the Only Way
posted by Brian Kalt
Professor Rick Hasen has a piece up at Slate on the D.C. Voting Rights bill. He says that the bill—which would give D.C. residents a voting member of the House of Representatives—is “probably unconstitutional,” but that “Congress should pass it” anyway. That’s what the Washington Post editorial board thinks too, saying that Congress should leave constitutional-law debates to the courts and do what is right. They agree with Rep. Steny Hoyer that “the case should be made on principle, not technicalities.”
Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I think that an amendment is necessary, because the Constitution limits the House to members from “the several states,” and D.C. is not a state.
To me, Hoyer’s dismissal of the Constitution—as a technicality to be brushed aside—is the opposite of principled. This country is not better off when it encourages members of Congress to abdicate their responsibility and their oath to support the Constitution. Our belt-and-suspenders system is supposed to give us multiple lines of defense against unconstitutional laws: the House, the Senate, the president, and the courts are all supposed to agree that a law is constitutional before it can be used. Leaving it to just the courts is like taking off the belt and one of the suspenders, and having the remaining suspender be very loose. I would very much prefer to keep America’s pants on.
January 28, 2009 at 11:23 pm
Posted in: Civil Rights, Constitutional Law, Current Events, Politics
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The Federal Overseas Voting Law (UOCAVA) Is Unconstitutional
posted by Brian Kalt
I live in East Lansing, Michigan, and I vote in federal and state elections accordingly. If I were traveling, working, or even living overseas temporarily, I would still vote in East Lansing, Michigan, as an absentee. Being away for a bit, without giving up my permanent Michigan residence, would not deprive me of my vote.
But say that I move overseas, with no intention of ever returning to the U.S. I sell my house in East Lansing. I burn my Michigan driver’s license. I forswear ever drinking Vernors again. I have no contact with anyone back home, and I don’t pay any taxes there. I cannot vote in state elections, because I’m not a Michigander anymore. But under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), I can still vote in federal elections, for the rest of my life. Despite my utter lack of ties to my old home, UOCAVA requires Michigan to let me vote as though I still lived in the Eighth District of Michigan. I can vote for U.S. representative, U.S. senator, and for president as though I were a Michigan resident.
Not only is that weird, it’s unconstitutional.
January 27, 2009 at 9:35 pm
Posted in: Constitutional Law
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Line of Succession Teaching Moment
posted by Brian Kalt
I saw this story this story about Defense Secretary Robert Gates being kept away from the Inauguration to preserve the line of succession in case of a “Mars Attacks” scenario. After seeing a couple of confused comments elsewhere on the internet, I thought I’d blog some basics about the line of succession.
The Constitution specifies only one member of the line of succession: the vice president. It empowers Congress to use ordinary legislation to provide a longer line of succession (”the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President”). Currently, the line of succession runs to the Speaker of the House, the President Pro Tem of the Senate, and then the Cabinet, in rough order of the establishment of their departments. Acting secretaries and people who aren’t eligible to be president are skipped over.
The inclusion of the Speaker and President Pro Tem is very likely unconstitutional. Because the line of succession is supposed to consist of “officers,” a designation that most people agree does not include members of Congress (who in fact are barred from being officers while in Congress), the line of succession should not include them. The statute in place between 1886 and 1947 included only the cabinet, and so avoided this issue.
Because the line of succession includes officials who are sometimes inclined to all be in the same place–at inaugurations, or at the State of the Union address, for instance–one person in the line is traditionally kept away from such gatherings. That is why Secretary Gates won’t be at the inauguration.
I saw some confused conspiracy theories online expressing suspicion about having the only Republican* in Obama’s cabinet in this role (one example: “I’m not ‘onboard’ with picking the only Republican, especially not given what this Republican junta has done.”). But Gates is a perfect choice. The conspiracy theory rests on the notion that the alternatives to Gates are Obama cabinet members like Hillary Clinton and Timothy Geithner. But until they are confirmed–and they won’t even be nominated until after President-Elect Obama takes over at noon–they are not in the line of succession. The Bush cabinet is. Condi Rice, Michael Mukasey, and all the rest will still hold their offices until their replacements come in (assuming that they don’t resign and let their deputies run things for a few days). As a result, Gates–who Obama is keeping on–is the perfect candidate. He might not be the conspiracy theorist’s favorite member of Obama’s cabinet, but he is the only one who has been confirmed already.
* It has been reported that Gates is not a registered Republican. And Ray LaHood, Obama’s nominee for Transportation, is a Republican.
January 20, 2009 at 9:07 am
Posted in: Constitutional Law
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Presidential Trivia Tidbits
posted by Brian Kalt
On Inauguration Day, I thought I’d cross-post some trivia tidbits that I blogged after Election Day at FullComment.com:
Obama will be the first president in U.S. history whose last name ends in a vowel other than E or Y. He is, not surprisingly, the first Barack to appear on a presidential ticket. Joe Biden is the fourth Joe/Joseph, but the first successful one.
While Barack Obama is tall at 6 ft. 1 in., that is only enough to tie him for ninth place in presidential history. His wife Michelle, however, will be tied for first place as the tallest first lady—like Eleanor Roosevelt, she stands 5 ft. 11 in. tall.
President John F. Kennedy was the first Catholic elected to national office in the U.S. There have been other Catholics on national tickets—Al Smith (1928) and John Kerry (2004) for president; Bill Miller (1964), Ed Muskie (1968), Sargent Shriver (1972), and Geraldine Ferraro (1984) for vice president—but they all lost. Vice President-Elect Joe Biden is Catholic, though, so the string of Catholic losses is now over, and John F. Kennedy is no longer the exception that proves the rule.
Barack Obama’s father was Kenyan, and of Luo ethnicity. Luo Kenyans, disgruntled over fraud in the recent presidential election that they say deprived their candidate, Raila Odinga, of a victory, have noted how ironic it is that the U.S. will have a Luo president before Kenya does.
Obama will represent a third consecutive term of Harvard-degreed presidents (Bush has a Harvard M.B.A.). He will end the record five-term streak that Yale had been running (both Bushes went to Yale as undergraduates; Bill Clinton went there for law school), and which Hillary Clinton would have extended. Obama is the second Harvard-trained lawyer to become president; the first was Rutherford Hayes. This ties Yale Law School (Presidents Clinton and Ford).
Barack Obama is the first Democrat to win a majority of the popular vote since 1976. He is only the fourth Democrat in the party’s entire 180-year history to be elected with more than 51% of the vote.
When a president does not run for reelection, it is difficult for his party to keep control even in the best of times. Since World War II, only Ronald Reagan has managed the feat. Presidents Truman, Eisenhower, Johnson, Clinton, and now Bush have all been succeeded by members of the opposing party.
January 20, 2009 at 8:33 am
Posted in: Current Events
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What does “the President (and only the President)” mean?
posted by Brian Kalt
I recognize that this post might put me dangerously close to the “pointless incessant barking” category, but I have been puzzling over it for a long time and can think of no better place to solicit some thoughts.
I have found a curiosity in 5 U.S.C. § 3345, the federal statute for appointing acting officers, such as heads of agencies. The statute provides as a default that the first assistant to the old officer automatically takes over in an acting capacity. However, the president can choose certain other people to fill in instead.
The weird part is that the statute specifies that “the President (and only the President)” may do this. For the life of me, I cannot figure out what adding “and only the president” adds, as a legal matter. I have come up with two possible explanations, but both of them seem stupid.
The first possibility is that the drafters of the statute meant to distinguish presidents from acting presidents, and allow only the former to handpick acting officers when vacancies arise. But an acting president is supposed to have all of the powers and duties of an “actual” president (with the possible exception of appointing a vice president under the Twenty-Fifth Amendment). Besides that, if Congress meant to enact such a distinction in this statute, this is far from the most obvious way to phrase it.
The second possibility is that the drafters meant to make this presidential power undelegable. So, for instance, if there was a vacancy in the office of the Deputy Attorney General, the president could handpick an acting DAG, but he could not just let the Attorney General do it himself. But it is hard to see how adding “(and only the President)” accomplishes any of that. Without the parenthetical phrase, the president still could not delegate the power to handpick acting officers–or more precisely, if he let a delegee choose the acting officer, the president would still have to formalize the pick by signing off on it himself. Adding the parenthetical doesn’t change the president’s ability to delegate (de facto) or his need to sign off himself (de jure).
I have not found any other possible explanations, nor have I found any hint in the structure of the statute itself, nor have I found any legislative history that casts light on this. Concurring Opinions readers are pretty smart. Any ideas, folks?
UPDATE: Well, someone was being stupid here, but it wasn’t Congress (hint: it was someone with the initials BK). As you can read in the comments, Congress has given the president a general ability to delegate his statutory authority, and this statute is just hemming that in. Other statutes do this too, and just use different language. Thanks to Jon Weinberg for clearing this up.
January 17, 2009 at 7:51 pm
Posted in: Uncategorized
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Roland Burris Loses, Wins in Illinois Court
posted by Brian Kalt
Things are moving quickly today in the case of Roland Burris’s appointment to the Senate. Illinois Governor Rod Blagojevich was impeached by the Illinois House today, but he still hasn’t been convicted and in any case his appointment of Burris had long since been issued.
Burris wasn’t seated by the Senate on Tuesday because his credentials were not signed by Illinois Secretary of State Jesse White. Burris sought a writ of mandamus from the Illinois Supreme Court, arguing that White had no discretion to refuse to sign the appointment document. Today, however, the Illinois Supreme Court denied Burris’s request. You can read the opinion here.
I was wrong—I had confidently predicted that Burris would win his case. But while he lost on his mandamus request, the Illinois Supreme Court made a strong statement that he should be seated by the U.S. Senate. Hopefully the Senate will take the court’s rebuke to heart.
January 9, 2009 at 2:41 pm
Posted in: Constitutional Law, Current Events, Politics
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Why I Think Presidents Can Be Impeached Even After Leaving Office
posted by Brian Kalt
A while back, I discussed the potential to impeach a president after he has left office. In my prior post, I concentrated on the practical questions—what factors would have to be in place before Congress would reach the unlikely stage of wanting to impeach an ex-president? The bottom line was that late impeachment is pretty unlikely, but not unimaginable.
In this post, I will concentrate on the legal argument for late impeachability. I will devote rather less space to the argument against it. Both arguments have much to commend them, and they are fleshed out (in excruciating detail) in an article that I published a few years ago, as well as a chapter in the book I am writing. As before, I am not suggesting that President Bush, Clinton, Bush, or Carter be impeached and tried—just that if Congress wanted to do so, they could.
In Article II, Section 4, the Constitution specifies that any civil officer of the United States must be removed from office upon impeachment and conviction for high crimes and misdemeanors. Critics of late impeachability take this to mean that a person must be removable to be impeachable. It’s a fair reading of the text, but a cleaner reading is that this clause only means to specify the penalty for sitting officers who are convicted. Under this reading, the clause does not limit Congress’s impeachment powers (which anyway are specified elsewhere, in Article I) to cases involving sitting officers.
Opponents of late impeachability often respond to this by saying that if Article II isn’t a limit on impeachment, it must mean that anybody can be impeached for anything. While it might be tempting to lobby Congress to impeach Bernie Madoff, though, this is not what impeachment is all about. The history of impeachment in England and America suggest that impeachment is concerned with public offenses by public officials; offenses “which may with peculiar propriety be denominated political,” as Alexander Hamilton put it in the Federalist Papers.
In other words, it is the nature of the offense, not the timing of the trial, that distinguishes impeachment. Only officers can commit impeachable offenses. If they commit such offenses, but leave office before Congress can finish the case, that doesn’t change the public nature of the offenses, or the appropriateness of having Congress as a forum to pursue them.
Thus, the true interpretive conflict is not between those who would impeach only sitting officers and those who would impeach everyone in the world. Rather, it is between those who see impeachment as protecting the office from the bad guy (which makes removal the key and makes late impeachment pointless) and those who see impeachment as the process for dealing with official misconduct qua official misconduct (which makes removal obviously important, but not the only basis for proceeding).
January 8, 2009 at 11:19 pm
Posted in: Constitutional Law, Politics
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Why President Bush Might Not Want to Pardon His Administration: An International Angle
posted by Brian Kalt
I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.
After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but listening to him, it did strike me that prosecutions–especially international ones–are more of a possibility than I had previously thought.
Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process–which could have more legitimacy and would avoid sovereignty concerns–remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.
If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.
Another permutation–impeachment of Bush Administration officials after they have left office–looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I’ll post more on “late impeachment” in the next few days.)
Again, I’m not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn’t realize a few hours ago.
January 7, 2009 at 1:17 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Current Events, International & Comparative Law, Politics
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More on the Roland Burris Appointment: A Response to Amar and Chafetz
posted by Brian Kalt
Over at Slate, Josh Chafetz and my mentor Akhil Reed Amar have penned what I think is the best argument one can make that the Senate can and should refuse to seat Roland Burris, Illinois Governor Rod Blagojevich’s pick to fill that state’s vacant Senate seat. The best, but still not enough in my opinion, following up on my earlier post.
The core of their argument is that the Senate can judge the elections and returns of its members, and so “[i]f the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.” They continue that:
To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to “pay to play” early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.
Here’s why I think that’s wrong.
Their analogy would work if, say, Jesse Jackson, Jr. got appointed over the corruptly excluded Valerie Jarrett. But that’s not what is happening here. Go back to the election analogy. Let’s say that an election was corrupt. The Senate rightly refuses to seat the winner of the election. Now there is a vacancy. Thus, the governor gets to appoint someone to fill it, and if he does so without any shenanigans that time, it should be OK.
The alternative would be to say that once one bad thing happens, the Senate can force the vacancy to persist until there can be a new and clean election. As my colleague Mae Kuykendall points out, though, the new election wouldn’t remove the “irremediable taint” of the corrupt vacancy anymore than a new and clean appointment would. What removes the stain of corruption is a non-corrupt appointment pursuant to state law. As warm-feeling a policy as boycotting Blagojevich might be, I don’t read Art. I, § 5 and the 17th Amendment as giving the Senate that authority here. It seems to me that those provisions leave it to state law to determine how vacancies are filled.
The alternative is a situation in which the seat remains vacant until the IL legislature either removes Blagojevich or passes a law stripping him of the appointment power and mandating an election. But surely that puts the cart before the horse. The legislature has had the opportunity to do both of those things already, and has declined to do so.
Put another way, the law is that the governor fills this vacancy. That law was followed here. No one is claiming that Blagojevich broke the law in selecting Burris. In the absence of any such evidence—let alone in the absence of an attempt to even look for such evidence—the Senate cannot legitimately question the “returns” here.
At least Amar and Chafetz have made a plausible legal argument, as opposed to Senator Reid’s legally vacant pronouncements. I find it ironic that Reid, a Mormon, is hearkening back to the pre-Powell notion of excluding people from Congress through guilt by association. Back in the day, that illegal approach was used to keep Mormons out of Congress for being Mormons. Senator Reed Smoot was challenged on these grounds, and it took four years of hearings and debate before he was seated. Notwithstanding their hard-to-overstate distaste for the people who sent Smoot to the Senate, the senators eventually let him take his seat.
More relevant for current purposes is that they seated him provisionally in the meantime, and had a real debate about it, instead of reaching their conclusion before he had even arrived.
January 1, 2009 at 2:17 pm
Posted in: Constitutional Law, Current Events, Politics
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Can the Senate Refuse to Seat Blagojevich’s Appointee?
posted by Brian Kalt
Politico and MSNBC are reporting that the Senate Democratic leadership is indicating its refusal to seat Roland Burris, who Illinois Governor Rod Blagojevich today indicated he will appoint to fill President-Elect Obama’s vacant Senate seat.
I’m not sure where the Senate Democratic leadership thinks it gets the authority to not seat Burris. Under Powell v. McCormack, the ability of the Senate to exclude someone would seem to be limited to judging that he hadn’t won the election (not applicable here) or that he is not qualified (30 years old, a resident of Illinois, and a U.S. citizen for nine years). Their discomfort with Burris’s appointer doesn’t enter into it.
Presumably, they could seat Burris and then expel him, but that would require a 2/3 vote, which would be hard to muster given that, by all accounts today, Burris is personally unobjectionable.
My best guess is that the Senate Democratic leadership would argue that the Senate’s authority to judge the elections of its members extends by analogy to judging the appointments of its members; and that a corrupt election would be cause to not seat someone, so a corrupt appointment should be too. But surely this sort of determination would require some sort of investigation rather than a conclusion that Burris is unfit for office (even if the Senate could get away with this constitutionally, it shouldn’t try to). Burris has not been connected to the corruption case as far as I know. What are the odds that Blagojevich would appoint him corruptly in the middle of this investigation?
If I were a leader in the Senate, I would confer with Sen. Durbin and Illinois state officials, and see what they think. I might hold some hearings to find out more about the circumstances of Burris’s selection. But I would not say that the Senate can just refuse to seat Burris.
December 30, 2008 at 2:56 pm
Posted in: Constitutional Law, Current Events, Politics
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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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More on the President’s Attempt to Revoke the Toussie Pardon
posted by Brian Kalt
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.
December 26, 2008 at 11:13 am
Posted in: Constitutional Law, Criminal Procedure, Current Events, Politics
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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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Can President Bush Be Impeached After He’s Gone?
posted by Brian Kalt
Can presidents be impeached after they have left office? In a 50,000-word article a few years ago, and in Chapter 6 of the book I am writing, I argued in favor of what I call “late impeachability,” and identified the (admittedly rare) contexts in which it might make sense.
I’ll do the same here, albeit in much, much less detail. In this post, I’ll talk about practical considerations (i.e., the “Why bother?” question). In a few days, I’ll post about the legal arguments supporting late impeachability (i.e., the “Whatchoo talking about, Willis?” question).
As with my post on presidential self-pardons, my writing on this question has been consistent over two presidencies; I have no partisan axe to grind. In any case, I don’t support any efforts to impeach President Clinton or President Bush. This post’s title is thus a bit dodgy (though presumably it succeeded in getting your attention).
My draft chapter starts out with this hypo, which touches on many of the practical considerations, and previews some of the legal arguments:
A year into his term, President Jack Martin is embroiled in the most scurrilous scandal in presidential history. Rumors swirled for several months before Martin finally gave into public pressure and appointed an independent counsel. It soon becomes obvious why he had been so reluctant: the independent counsel quickly uncovers mountains of evidence of President Martin’s lucrative and corrupt relationship with Ted McGee.
McGee—a lobbyist and longtime friend of the president—collected tens of millions of dollars in “lobbying fees” from people, companies, and governments, and turned over half of the money to President Martin. Without fail, McGee’s clients benefited from presidential attention to their needs almost immediately after paying their bribes. As desired by McGee’s clients, Martin promoted or vetoed legislation, appointed or fired officials, and more. In the worst instance, Martin ordered the military to share certain top-secret missile technology with a less-than-steadfast ally.
December 21, 2008 at 10:59 pm
Posted in: Constitutional Law, Current Events, Politics
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Can the President Pardon Himself?
posted by Brian Kalt
Would a presidential self-pardon be valid?
My answer—no, it wouldn’t be—was first registered back in the 1900s, when I wrote my student note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons. This was the beginning of my principal scholarly focus: “weird constitutional stuff that probably won’t ever happen (but if it ever does, wow!).”
As President Bush’s term draws to a close, people are starting to ask me about self-pardons again, just as they did at the end of President Clinton’s—and just as President Nixon asked his lawyers before he resigned (they said he could self-pardon, and he contemplated it). Not that partisans ever believe it, but my answer has been the same regardless of which party the president in question belongs to.
There are good arguments on both sides of the question, and Chapter 3 of my book-in-progress (Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies) deals with them in more detail than my note, and in much more detail than this post. The chapter starts with a hypo (after which, in this post, I will sketch out the legal analysis):
The last year of his second term have been a non-stop political and media circus for President Smith. He and his top operatives have been embroiled in a complex and confusing scandal, with a seemingly endless stream of allegations of bribery, tax evasion, abuse of the power of the presidency, and, for good measure, some violence and drugs.
December 14, 2008 at 9:07 pm
Posted in: Constitutional Law, Criminal Procedure, Politics
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Rep. Nadler’s Proposal to Amend the President’s Pardon Power
posted by Brian Kalt
Rep. Jerrold Nadler (D-NY) is apparently going to introduce a constitutional amendment to limit the president’s pardon power. It would prevent presidents from pardoning members of their own administrations for their official acts, and would limit the pardon power in the last months of a presidency.
Nadler is apparently worried that President Bush will do both of these things, and issue lame-duck pardons of his subordinates for their role in the administration’s controversial torture and surveillance policies. [One might wonder why Nadler didn't have anything to say about President Clinton's controversial last-day pardons of a member of his administration (Henry Cisneros), and a domestic terrorist who had enlisted Nadler's assistance in the pardon process (Susan Rosenberg of the Weather Underground). To be charitable towards Nadler, though, Rosenberg wasn't a member of the Clinton Administration, and Cisneros's criminal conduct did not arise out of his Cabinet duties, so his proposed amendment is consistent with allowing those pardons.]
To me, the most interesting thing about Nadler’s proposal is how diametrically opposed it is to the Framers’ conception of the pardon power. This is not a criticism of Nadler’s proposal as such—by definition, constitutional amendments are inconsistent with the constitutional provisions that they are trying to change. But it is striking, and illuminating.
December 5, 2008 at 10:41 pm
Posted in: Constitutional Law, Current Events, Politics
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