If I were that guy, I'd consider myself pardoned.

Interesting news for Marc Holder.

The most interesting and politically significant interpretation will come from the post-election apparent leader of the R's, Mr. Rove, whose planned attack on Holder is (1) based almost entirely on the Rich pardon, and (2) intended to weaken Holder as the incoming AG who will be called upon to continue and investigations of various Bush officials, including Rove himself, based on, inter alia, Siegelman and Scrushy, the now and most conveniently deceased Michael Connell, and so on.

We would appreciate if all of you Vincent Foster case fans would look into the crash of Connell's plane after he had received threats from Rove and his counsel had sought both state and federal protection.

Could someone explain why Marshall considered a pardon to be like a deed? It is not obvious to me why.

Our Prediction:

Mr. Toussie, Sr., well known Republican "draft resister" will litigate Jr.'s discount pardon to the Supreme Court and win.

Toussie v. United States, 397 U.S. 112 (1970)
U.S. Supreme Court, (March 02, 1970)
Docket number: 441
Permanent Link: http://vlex.com/vid/20079222
Id. vLex: VLEX-20079222

RPT

1) Did you actually read the decision in Toussie v United States?

2) If the answer to 1) is "yes," then what possible bearing does it have on the question of presidential pardons?

Or are you just looking for some place to vent your Rove-derangement-syndrome theories that bears even the slightest relationship to EV's post?

David Matthews,

I think RPT is figuring that Justices Black, Douglas, Brennan, Marshall, and Stewart were part of the Rovian plot (back when Karl was just 20 years old--the evil bastard).

Well, you commenters can't see past the most literal interpretation available. Of course we read the case. The point is that Sr. is going to litigate Jr.s pardon and will will. That is the prediction.

Re Rove: He is involved in this matter because he wishes to discredit Eric Holder (thanks for the name correction). We will wait to see what happens with the new DOJ and hope for the best. There is a long public record of his crimes and misdeeds, including those who are imprisoned today through his machinations (i.e Siegelman and Scrushy). A guy who has spoken out on television about every conceivable subject yet refused to appear for any deposition, or any congressional testimony, on the same subjects as to which any privilege is long since waived, is not entitled to any presumption of innocence in the public domain. The RDS may go away if he is willing to testify on all of the subjects to which we the public are entitled to inquire. I would appreciate any substantive defense of his conduct.

Oh, and: " Of course we read the case."

How many of you are there?

"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."

By putting the final "sealing" and "execution" in the hands of the Pardon Attorney, it seems that the process has been terribly muddied. The technical question becomes, apparently, whether a Master Warrant of Clemency is a "sealed" deal, and if not, whether the Pardon Attorney had yet bothered to "execute," before the recision order was given, and what exactly is meant by "execute."

It seems that a lot of this could be avoided by going back to the practice of not announcing decisions before actually making them. The issuance of a Press Release is certainly not an official act; lord knows that Presidents go against those all the time. If the act had been kept secret until the Pardon was executed (or not), it seems this could have been avoided.

Both of the commentators seemed to ask why should a President be allowed to retract a pardon? But why shouldn't she? If the pardon has not been delivered the finality of pardons is not at issue. Kalt's concerns about a President being able to "un-issue" a pardon and thereby unilaterally impose punishment seems misplaced in situations like this current one.

Froomkin makes two arguments about the propriety of allowing a president to revoke a signed, but undelivered pardon.

1. persons can be pardoned in situations where delivery is impossible or unnecessary, therefore delivery can’t control.
2. it would be bad to create a now-you-see-it-now-you-don’t pardon that some future President Blagojevich could sign but not deliver, tricking someone into acts of reliance to their detriment.

The fact that people can receive a pardon in situations where delivery is impossible, ex. post mortem, doesn't make delivery irrelevant. It simply means that delivery can be made by announcement or general proclamation (and at least in the case of the dead acceptance may be presumed).

As to the other concern I fail to see how allowing a President to revoke an undelivered pardon creates more opportunity for chicanery than the pardon power already encompasses. No one is arguing that a President can't promise to issue a pardon and then change their mind. If the main concern is a President telling someone that they have signed a pardon in order to induce favors the solution is self protection. Individuals should make sure they don't actually pay for their pardon until it’s delivered. Probably the safest mode of corruption would be some sort of installment plan, after this I would certainly insist on it.

"even the time at which the President issues a proclamation announcing the pardon"

Seems to me this would be problematic. I can't think of any Presidential decisions that become official on proclamation, before any signed official paperwork. It also isn't clear to me that delivery of a Master Warrant of Clemency would be the time it's official, either; consider your example of having a document notarized. If the Pardon has not actually been executed, can it be considered to be irrevocable?

Habano, there are very good reasons for a pardon power, in general. See Shay's Rebellion.

Issue came up during Ford's pardon of Nixon, in the form of "does the pardonee have to accept it, and in doing so does he admit guilt?"

I thought it a little strange. I mean, if convicted, which Nixon was not, nobody asked if he accepted the underlying conviction, did they?

Let's get rid of anti-pardoners.

Given that the constitution places the pardon power in the sole hands of the President without any direction on how it is to be executed, I would think a general and public announcment should suffice without any paperwork. The paperwork should be treated as a ministerial non-discretionary act once the proclaimation has been made.

I suppose the arguement against this is that it leaves no method for a pardon to be rejected, which is a possibility given that acceptance of the pardon is supposed to signify the acceptance of the underlying crime. Yet more reason to be unhappy with the states that use pardon as one method for correcting wrongful convictions.

If it does turn out that the pardon doesn't take effect until it is signed and delivered by the Pardon Attorney, I suggest we keep an eye on the guy in case he gets any wild ideas about the "unitary executive assistant".

I think there's a key sentence in the reasoning in the ruling on Biddle v Perovich, a case that has been cited to claim that the President cannot revoke a pardon before it is received. It is this:

"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."

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, clearly the President believes that a pardon would not best serve the public welfare.

It seems to me that Congress could define this and other issues related to pardons under the Necessary and Proper Clause (Art. I, Sec. 8, cl. 18), which reads in relevant part "To make all laws which shall be necessary and proper for carrying into execution ... all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."

Hmmm.

Isn't this question answered entirely within the Constitution?

The President has the Constitutional power to pardon.

There is no mention in the Constitution of any specific process required to complete a Presidential pardon.

There is no mention anywhere within the Constitution of the Presidential power to un-pardon.

Thus, to me at least, the simple answer is that the pardon becomes permanent when the President announces the pardon and that it has nothing to do with signing, delivery or execution.

Bush announced he was pardoned so he's pardoned.

Or is this way too simple for lawyers?

A badly stated question which assumes the existence of a state of irrevocability, tied in some manner to another undefined condition called "effective", without establishing that a pardon can ever be irrevocable.

You'll notice that Eugene's post is abbreviated. That's because (I assume) he intends us to read the linked essays. And in fact, if you read Michael Froomkin's post, you'll find that he discusses the history of the concept of a pardon being irrevocable in the United States.

So could you RTFA already?

Once they are pardoned, the offense is removed. There is nothing left to un-pardon.

That's sort of the way I see it. Of course, not being a lawyer it is pretty simple for me not to make things really more complicated than they have to be, but an "unpardon" would seem akin to double jeopardy.

Steve:
To me, the lack of a specified procedure simply means that the President has the right to implement whatever process he deems appropriate. It doesn't mean he's forbidden from utilizing any process more complicated than saying "this person is pardoned."

Agreed. He can implement any process he wants. If the Tuesday announcement said "he is pardoned," then the process he chose was to simply announce the pardon, and he is pardoned.

If the Tuesday announcement said "I will pardon him in the near future," then I would say he is not pardoned until the paperwork is formalized.

I really should look up exactly what the Tuesday announcement said.

What is the advantage to Toussie Jr to having a pardon? (It may be licensing or something similar). The answer should determine if he will sue.

MarkField:

"It seems to me that Congress could define this"

I agree that they could. Although the executive branch might complain mightily that this definition infringes on their Constitutional authority.

Apparently though, they haven't. And so the procedure is governed by a series of internal policy directives that normally wouldn't make much difference, except in the cases where 1) policy is circumvented (Marc Rich and Isaac Toussie for just two examples) or 2) someone experiences seller's remorse (Bush, apparently, in the Toussie case).

And then, should anyone push it, it will come down to the Supreme Court trying to divine Presidential intent and Constitutional authority, as against some sorts of irrevocability and double-jeopardy arguments.

It seems clear to me that, given that the power to grant pardons is an enumerated presidential power, all deference should be given to the president in his, however bungled, implementation of that authority.

In other words, if the same person grants, then, before the paper work is completed, rescinds a pardon, he cannot be "trapped" by his own Constitutionally-mandated supreme authority. The president certainly holds veto power over himself.

Steve:

To me, the lack of a specified procedure simply means that the President has the right to implement whatever process he deems appropriate. It doesn't mean he's forbidden from utilizing any process more complicated than saying "this person is pardoned."

So the president wakes up in the morning and, while in the privacy of his bathroom, says, "John Smith is pardoned." He does or says nothing else. Is John Smith in fact pardoned? Does John Smith know it? Does his parole board, prospective emplower, state licensing board, or doting grandmother know that he is in fact pardoned? How would anybody prove it? Sorry, but I think some slightly more complicated process is required.

Isn't this question answered entirely within the Constitution? The President has the Constitutional power to pardon. . . . Thus, to me at least, the simple answer is that the pardon becomes permanent when the President announces the pardon and that it has nothing to do with signing, delivery or execution.

I'm thinking that if I'm the prison warden then I'm going to expect some paperwork to come my way before I throw open the doors. A few second sound bite on CNN just isn't going to do it for me, even if it does appear to be the stinking president.
The magic word theory, the pardon happens when it crosses the president's lips, just doesn't hold in the real world.

David Matthews,

You wrote:

"It seems to me that Congress could define this"

I agree that they could. Although the executive branch might complain mightily that this definition infringes on their Constitutional authority.

Apparently though, they haven't.

But see Schick v. Reed, 419 U.S. 256, 266 (1974) ("A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress.").

Brian Kalt: The power flows directly from the Constitution, and Congress cannot restrict it. However, I see no reason why they couldn't pass a law to clarify how it happens.

A good analogy might be Constitutional Amendments. Clearly the power to amend the Constitution is set forth in the Constitution itself, and Congress can't modify or remove it or vest it in another entity. But Congress has fleshed out the procedure, and the Constitution itself is lacking in details.

The only argument might be whether it is Congress or the President who gets to flesh out the details. But the idea that nobody can is kind of crazy.