CT Blue

Might I direct the reader’s attention to the discussion over at Talking Points, particularly this post, about Bush’s attempt to “revoke” a pardon that he granted to a scam artist from Long Island.

First let me confess that if not for my own laziness I would have written about this before. As soon as I heard about Bush’s pardon “revocation” it struck me as odd. How can a President revoke a pardon. If it could be done, what would stop a President’s successor from revoking one of his (or her) pardons?

As Josh Marshall points out, the press has not gone out of its way to delve into this question. Marshall did, and his findings are interesting:

First is the argument put forward by the White House itself, that the president had sent requests for pardons to the Pardon Attorney but that the Pardon Attorney had yet to “execute and deliver grants of clemency to the named individuals.” According to the White House press release from Wednesday, the president got to him before he’d done that and “directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie.”

But from what I can tell, the Pardon Attorney doesn’t ‘execute’ anything. The current system of having the Pardon Attorney create certificates of pardon only goes back to the Eisenhower administration, and was then apparently only done to relieve the president of the chore of signing so many pardons and commutations. I spoke to former Pardon Attorney Margaret Colgate Love (1990-1997) who told me that “receiving the president’s warrant and sending notifications to the petitioners is purely ‘a ministerial act of notification.'” In layman’s terms, at this end of the transaction, the Pardon Attorney’s role is really just a matter of paperwork. “When we received the Master Warrant from the president,” said Love, “what our job was was to notify them, by telephone, and eventually by written notification. The document evidenced the president’s action. We never assumed that that document had any necessary legal significance.”

So just as a factual matter, the idea that the Pardon Attorney needs to ‘execute’ the pardons seems to be bogus. End of story.

The second argument has to do with notification. The idea here is that even though the president is the actor, his pardon only takes effect when the petitioner is notified. This reasoning depends on the Du Puy case from 1869, in which the Court ruled that President Grant could take back two pardons earlier issued by President Johnson because the petitioners had not yet been notified of their pardons. But the Du Puy case comes from a technological universe in which the US Marshal’s notification would have been the first the petitioner heard about it. But clearly that’s not the case anymore. There’s little doubt that Toussie heard about his pardon in the news prior to the president’s decision to rescind it.

More to the point, from talking to people familiar with the process, I understand that it is standard procedure for the petitioners or their counsel to be notified of their pardon either before or simultaneous with the public announcement. So there’s every reason to be believe that Toussie or his attorneys were specifically notified of his pardon, despite not getting the framable document that does not appear to have any legal significance.

If Mr. Toussie decides to litigate this question, it seems to me his case will hinge on whether the White House did, in fact, notify him or his attorney prior to making the pardon public. Secondarily, as Josh says, he can argue that notice to the world is notice to him. Thirdly, of course, it will hinge on whether a judiciary solidly in the Republican camp will care to embarrass a former Republican president.

It seems to me that this is just another instance of Bush believing that he has unlimited power. In this case, he is claiming to have unlimited power to revoke an exercise of what is a virtually unlimited power to begin with. No one argues (and I’m not sure why) that the Congress has any ability to regulate or restrain the pardon power, by, for instance, requiring that the president follow any particular process. It is hard to see, given that assumption, how any president can impose any procedural constraints on himself or his successors.