Presidents, pardons, and power

PRESIDENTS, PARDONS, AND POWER…. Like it or not, presidents have broad authority when it comes to granting pardons. They also, however, have no authority to when it comes to taking pardons back.

Bush’s clemency, announced this week, for Isaac Toussie is rather scandalous in its own right, given Toussie’s background as a scam artist who got off easy running an illegal mortgage scheme and his father’s contributions to Republicans earlier this year. But it’s the president’s decision to try and change his mind that’s especially interesting.

Now, as a legal matter, it appears Bush can’t grant a pardon and then rescind it. The process just doesn’t work that way. The White House would have us believe, however, that his publicly announced, unconditional pardon for Isaac Toussie didn’t really count. Bush was going to grant him clemency, but it hadn’t actually happened yet, so the president interrupted the process before it could become official.

There are two arguments at play here. The first is that the Pardon Attorney at the Justice Department had yet to “execute and deliver grants of clemency to the named individuals” announced on Tuesday. The White House claims got in touch with the Pardon Attorney before the official action could be taken. Josh Marshall looked into this and found that the Pardon Attorney doesn’t actually “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.

The second argument is that a pardon is a legitimate, genuine pardon only when the petitioner has been notified, stemming from the 1869 Du Puy case. In this matter, it’s very likely that Toussie had been notified — formally (through his attorney) and informally (through the media). Indeed, other petitioners on the same list found out about their clemency through their attorneys, who had been notified about the pardons in advance of the White House announcement. It’s likely, though unconfirmed, that Toussie’s lawyer received one of these calls, too.

Josh noted that this is bound to end up in court. The Wall Street Journal‘s Dan Slater spoke to an expert who added that Bush’s attempted take-back “could be challenged,” and Toussie’s lawyers would have a good case: “It should be possible for Toussie’s attorneys to go to court for a declaration that the pardon became effective when the warrant was signed and, depending on the facts, when it became communicated to him or when he read it.”

Stay tuned.

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Steve Benen

Steve Benen is a producer at MSNBC's The Rachel Maddow Show. He was the principal contributor to the Washington Monthly's Political Animal blog from August 2008 until January 2012.