Bush “Revokes” A Pardon (When Do Pardons Vest?)

Extraordinary (in the sense of rare and nearly unprecedented) piece of news today: Bush withdraws 1 of 19 pardons he issued Tuesday.

To a Constitutional lawyer, the interesting question is whether it is even possible to revoke a pardon once it is given. It is long-established that in the eyes of the law, a full pardon makes it as if the offense — not just the conviction — never happened. The Supreme Court said 125 years ago that “the pardon not merely releases the offender from the punishment prescribed for the offence, but that it obliterates in legal contemplation the offence itself.” Carlisle v. United States, 83 U.S. (16 Wall.) 147, 151 (1873). [Note, however, that some courts hold, controversially, that a pardon does not preclude the imposition of attorney discipline based on the underlying conduct, because a pardon “cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.”]

So, pretty clearly, once a full pardon is signed, sealed, delivered, and accepted by the recipient, that's it: you can't take it back. (So called-conditional pardons, which may have a condition precedent are a different animal, but that's not what we're talking about here.)

The AP's story is very scanty on the legally significant facts, saying only that Bush “revoked” a pardon, and then discussing the reasons for the sudden turnaround. That could mean almost anything.

If Bush had not formally signed a pardon document, then there's no legal issue: what's been revoked is an intention to pardon, and the public announcement doesn't create any legal obligation to actually do so. The cases are clear on that point.

But if the President actually signed a pardon, then changes his mind, all of a sudden we're in interesting territory, reminiscent of Marbury v. Madison but involving a completely contrary opinion by Chief Justice Marshall.

Logically there are four steps in a regular (as opposed either a general or conditional) pardon:

1. The President makes a decision.

2. The President signs a pardon, and (perhaps) it is sealed to show it's official.

3. The pardon is delivered to the beneficiary.

4. The beneficiary accepts it.

Everyone agrees that after step four under US law the pardon is unassailable.

It seems to me also that there's basically no debate that by then end of step three, the pardon is final and cannot be revoked, even if the beneficiary hasn't yet decided whether to accept it or not. And, as noted above, after step one, there's nothing to revoke except a legally meaningless promise.

The interesting case — which may or may not exist here, we don't yet know — is whether a pardon can be revoked after its signed (and sealed), but before it's delivered. It doesn't happen very often, but it's not unheard of.

I'd argue that the answer to that question ought to be no — once a pardon is signed and sealed, that's it, the thing is done forever unless the recipient of the pardon rejects it. Here's why: First, persons can be pardoned in absentia, by general proclamation, or even posthumously, in situations where delivery is impossible, or at least unnecessary. (On the other hand, as discussed further below, no one is obligated to accept a pardon; some might see it as an admission of guilt, or in the case of conditional pardons might find the conditions unpalatable.) Second, 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.

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.

So, depending on the facts and especially how advanced the paperwork was, Robert Toussie of Brooklyn, N.Y. may have an interesting case, or he may have nothing.

Incidentally, according to Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. Rev. 947, 979 n.105 (2003), Bush decided to let Clinton's pardon of Marc Rich go through, despite doubts as to whether the paperwork was final: “President Bush considered the possibility of revoking this pardon but decided against it “to protect that privilege, not only for me but for future presidents, as well.” (citing John Riley, Bush Won't Revoke Pardon of Financier, Newsday, at A14 (Jan. 30, 2001)).

It's interesting that Bush's concern eight years ago “to protect [the pardon] privilege, not only for me but for future presidents” seems to have attenuated. What would Cheney say?

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5 Responses to Bush “Revokes” A Pardon (When Do Pardons Vest?)

  1. eck says:

    Michael, I don’t think it’s all that controversial to suggest that a pardon in no way precludes bar discipline for the same conduct. As a 1995 OLC opinion puts it,

    There may be instances where an individual’s conduct constitutes not only a federal offense, but also a violation of a separate code of conduct or ethics that the individual is obligated to comply with by virtue of his or her professional license. Discipline associated with the breach of the conditions of a professional license, where the disciplinary action is not triggered merely by the fact of commission or conviction of a federal offense, generally would not be barred by a pardon.

    For example, an attorney charged with a criminal offense for which he or she is later pardoned by the President would be relieved of all consequences that attached solely by reason of his commission of the offense. However, the pardon would not necessarily prevent a local or state bar from disciplining the attorney, if it independently determined that the underlying conduct, or some portion of it, violated one of its canons of ethics. In those instances, the bar would not have based its decision to disbar or sanction the attorney on the fact that the attorney had violated the criminal laws of the United States, but rather would have conducted an inquiry into the conduct and determined that an ethical violation had occurred. Several state courts have taken this approach when considering the effect of a gubernatorial pardon on state disbarment proceedings. See e.g., In re Bozarth, 63 P.2d 726 (Okla. 1936); In re Lavine, 41 P.2d. 161 (Cal. 1935); Nelson v. Commonwealth, 109 S.W. 337 (Ky. 1908).

  2. michael says:

    I guess the issue is what you think a pardon means. If it means “no criminal liability attaches to the act” then the OLC is right. That is consistent with the modern Willistonian view.

    But if Marshall’s view is the correct one, that the pardon makes the action invisible to the law, then the imposition of attorney discipline by a court or other state actor is problematic.

    I don’t personally have a strong view either way. Marshall’s view asks us to accept a capacious legal fiction, and to suspend personal judgment, neither of which is terribly attractive. The modern view invites a degree of back-door undermining of a pardon, which may or may not be such a great idea depending on the circumstances.

  3. eck says:

    Michael, it seems to me that Marshall’s view as you describe it is profoundly problematic, especially WRT federalism. It is clear, I think, that a presidential pardon is restricted to relief from federal crimes: that is, the president cannot pardon or commute a state conviction, nor can he void a state or federal civil judgment.

    Now suppose A commits a wrongful act — say, a tort that also happens to be a state and federal crime — and is federally prosecuted and then pardoned. Under Marshall’s view, wouldn’t a potential civil plaintiff (or state prosecutor) simply be out of luck? (Let’s assume the SOL hasn’t run.) Worse, suppose A has already been sued and prosecuted in state court, losing in each case, and has a pending appeal. Can it be that A can now vitiate each judgment against him by citing the presidential pardon’s supposed obliteration of the original offending act?

    To make this concrete: A is convicted of solicitation of prostitution on federal parkland. He is promptly pardoned. May A’s wife still maintain an action for divorce?

    Williston has the better of the arguments by far, it strikes me.

  4. michael says:

    I think that’s a very persuasive point, although I will say in Marshall’s (semi) defense, that at the time he wrote there were relatively few things that were both state and federal crimes so the issue wouldn’t have been a big one.

    But I still think there’s an issue as regards purely federal crimes. Take, for example, federal tax fraud by a Florida resident. No state tax, not state issue. States routinely disbar lawyers for tax fraud. Attorney Jones is pardoned for his. What result in the disbarment proceeding and why? Does the motive matter?

  5. eck says:

    I think Jones needs to answer to the Florida bar (and the bar in any other state where he’s admitted). Giving the president the power to preclude/override state bar discipline seems to me a really bad idea. The fact that Jones was only cheating the federal government, and not his licensing state, doesn’t alter the fact that his conduct casts doubt on his fitness to practice law.

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