Based on information that has subsequently come to light, the president has directed the pardon attorney not to execute and deliver a grant of clemency to Mr. Toussie. The pardon attorney has not provided a recommendation on Mr. Toussie’s case because it was filed less than five years from completion of his sentence. The president believes that the pardon attorney should have an opportunity to review this case before a decision on clemency is made.

If we can believe what the Bush administration says (can we?) this suggests pretty strongly that we were at what I called “step one” — nothing had been signed or sealed. In which case, legally, it’s a non-issue.

Update (12/26): Brian Kalt argues, with some reason, that maybe I gave up too easy. The key fact — as I suggested half-heartedly above, but couldn’t quite bring myself to believe — is that the White House may have been misleading us about whether a formal pardon was actually executed. Here’s part of what Prof. Kalt writes,

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.”

Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn’t hold up.

Could this be another example of what Brad DeLong says: “The Bush Administration: Worse than You Can Imagine Even Though You Know It Is Worse than You Can Imagine”?

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?

The application of this standard has caused considerable angst over the years, with school Principals sometimes allowing what to my eye is a ‘heckler’s veto’ when they forbid some controversial statements because it could cause trouble. The cases as a group don’t make a whole lot of sense to me (e.g. no to a T-shirt with a gun, yes to a pro-gay rights shirt, no (mostly) to the confederate flag, and so on). But that’s not the point of this story.

One of my sons goes to public school. We were talking this morning on the way in, and we got around to whether people wore Obama or McCain buttons to school.

“We’re not allowed to do that,” he said.

My lawyer brain lit up with a big blinking TINKER! sign.

“Why not?” I asked very calmly. (LAWSUIT! LAWSUIT! I’m thinking.)

“Because we’re not allowed to have anything sharp, and the buttons have sharp parts [pins] on the back. Teachers can wear them, but we can’t.”

“Oh. Would you be allowed to wear a sticker?”

“Sure.”

We often hear that law on the sharp end is different from law in the books. Here’s a content-neutral prohibition — part of a general zero-tolerance policy on weapons and the like — that I imagine the school could successfully defend as a safety issue in almost any court. And yet it shuts down a whole range of political speech.

Everyone agrees that persons born in the USA are natural born citizens. Almost everyone agrees that persons born outside the US who qualify for birth citizenship pursuant to a statute are also “natural born citizens” and eligible to be President. That’s certainly my view. A few people have argued that only persons born here are “natural born” citizens, and that other class of birthright citizens are not sufficiently “natural”, but I think that’s a losing argument, and it hasn’t gained much traction.

John McCain was famously born in the Canal Zone — not in the US. But both his parents were citizens, so that’s no problem, right?

Not so fast.

From Adam Liptak’s latest, A Citizen, but “Natural Born”? McCain’s Eligibility to Be President Is Disputed by Professor, we learn of a serious argument against McCain’s eligibility.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain’s eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

What about citizenship by descent? There was a glitch.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

Which is why the 1937 law was needed in the first place.

The Supreme Court has relied on far less pettifogging distinctions to deny the right to sue to whole classes of workers. Surely a ‘strict constructionist’ court would read the law this way too? (The counter-argument is the sort of purpositive reading of law that conservatives usually claim to eschew, namely that this is a crazy result that Congress couldn’t have meant in the earlier law, and the ‘37 act was just housecleaning.)

Mr. Liptak suggests we’ll never know, as (despite there having been a suit on this issue filed in New Hampshire) there is probably no one with standing to sue, a legal term that approximates the concept of direct, palpable or probable, person injury of a kind not shared equally with all citizens. Prof. Chin suggests that if McCain is elected, the Vice President-elect will have standing, but is unlikely to sue.

I think the standing argument is probably right. Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)

No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain’s ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water’s edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don’t think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don’t think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.

FISA Court Judge Quit Over White House’s Refusal to Legally Obtain Spy Warrants

Three years ago, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from a secret intelligence court set up to monitor the federal government’s domestic surveillance activities.

Robertson’s abrupt departure came on the heels of a December 2005 report in The New York Times that first exposed the White House’s warrantless wiretapping program President Bush had authorized shortly after 9/11. Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush’s unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

This week the Senate will vote to allow this corrupt administration to wiretap Americans for up to a week without a warrant, and to remove the check of liability on telcos that enable past (and by implication future) illegal wiretaps.

Parlous times.

It’s all about too much power in the executive branch, which is a conservative principle. Because of the war in Iraq and partisan division, Bush and Cheney convinced Republicans that this is something you should be for. But guys who went to law school know better than that.

So do gals.

Without doing some research, I don’t know the law well enough in this area to form an opinion, but it’s intriguing and I’d welcome comments from those who know the area.

Although the article does a great job of describing some recent cases and issues, the academic in me wishes that every time anyone writes about this stuff they’d have the space and time to provide what I see as some critical context for the debate as to when a person can be forced to hand over the key to a cryptosystem.

There are plenty of technical issues here (what happens if you really have forgotten your password? or if someone has put random gunk on your hard drive, making it look like there’s crypto there?), but even more important fundamental ones. In particular, the current debate over the extent to which the 5th Amendment protects encrypted messages matters so much because our understanding of the 4th Amendment has changed. A hundred years ago, the Supreme Court thought it was obvious that asking a person to turn over his private papers was a constitutional violation. Even 30 years ago the Court thought that the 4th Amendment protected some zone of private papers such as a diary from demands that they be turned over. (Note that there can be an important difference between finding something in a search and demanding that the subject of the search find it for you.) Today, although the Supreme Court has never actually decided the diary issue, it’s pretty clear that no other writing — and probably not the diary either — is protected from such demands.

It’s the evisceration of the 4th that puts such pressure on the 5th. It may be that as a society we really don’t want to allow any zone of privacy beyond what you can keep in your head. But as devices record more of our lives, and as we rely increasingly on what some of us only half-jokingly call our prosthetic memories, I think that it is increasingly unrealistic to exclude at least some bits from the intimate zone of privacy if we wish to remain true to the purposes of the 5th (and 4th) Amendments.

Google Maps actually has a good image of it:

I’ve never taught or litigated an Establishment Clause case, but I was under the impression that if this is public land, there has to be a sign on such a display explaining who paid for it, lest it appear to be a city-purchased religious display. Then again, it might be private land. Indeed, one of my colleagues tells me that there used to be a church where the building next to the circle now stands (the tall thin building in the image above), and speculates that when they sold the land they held on to this piece (or kept an easement) just for this purpose. Could be: but why no sign claiming credit?

A federal judge in Vermont has ruled that prosecutors can’t force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase.

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

Niedermeier tossed out a grand jury’s subpoena that directed Sebastien Boucher to provide “any passwords” used with his Alienware laptop. “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,” the judge wrote in an order dated November 29 that went unnoticed until this week. “Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

Full text of the decision in In Re Boucher, 2007 WL 4246473 (D. Vermont, Nov. 29, 2009).

Long ago I wrote a lot about encryption keys, and touched on this issue. You can read the articles at The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution, 143 U. Penn. L. Rev. 709 (1995) and especially It Came From Planet Clipper, 1996 U. Chi. L. Forum 15.

The heart of the argument is that things in your head are not like objects in your possession: the core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt. Giving up a passphrase to an encrypted message ties you to the encrypted information; if the info is, say, child porn, it creates a very strong inference that you knew what the data were and that you possessed them (there are exceptions, including email some else sent to you that is decryptable with you private key, but ignore those scenarios for now).

Other people, notably the redoubtable Orin Kerr, who argue that there is no Fifth Amendment issue here tend to focus on the analogy of possession of a physical key to a physical lock. The law is pretty clear that you can’t stop the cops from taking a physical key on the grounds that the stuff inside that safe will tend to incriminate you.

But the law is also clear that the Fifth Amendment protects you from having to make an oral or written disclosure which is “testimonial” – that, is, whose content might tend to tie you to crime. (Note that “content” means “informational content” – you can be forced to give a meaningless writing sample for handwriting comparison purposes.) This is why the cops are not able to force suspects to take them to the dead body.

It seems to me that the pure compelled disclosure case is not that hard, and that this Magistrate Judge got it right. Note, however, that this decision, emanating from the lowest-level official in the federal court system, is not precedential for other courts; and since it is pretty brief its persuasive power may not be all that great either.

Nor do I think that making a defendant decrypt something without divulging the key would in any way solve the problem, as it still ties the defendant to the content.

The hard case for me would be if the police provided limited “use immunity”: they would promise not to make the fact that your key decrypted the info any part of the prosecution. Thus, for example, the indictment would just say the information was on your hard drive, without mentioning that you had the only key to decrypt it. I think, given the current state of doctrine, that courts might well hold this to be consistent with the Fifth Amendment, making the underlying provision little more than a fairly cumbersome technicality. Doctrinally, that is not such a hard result to foresee, but it is not as simple to explain why this would apply to a coded message and not a dead body.

The flip side of the hard case is when the government provides use immunity and the suspect/defendant claims he doesn’t know or has forgotten the passphrase. Then what?

In fact, I do have one ancient PGP key for which I seem to have forgotten the passphrase, so I know it can happen. But in most cases the police are likely to view this sort of memory malfunction as unduly convenient.