Pardon Update (Updated)

Seems like I may have wasted my time writing that pardon post (Bush “Revokes” A Pardon (When Do Pardons Vest?))… The New York Times has a statement from the White House on the pardon revocation:

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”?

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6 Responses to Pardon Update (Updated)

  1. PHB says:

    There are two levels here, the legal and the political.

    Since we are talking about the Bush White House, the legal level is considered all but irrelevant. What matters is the politics of the situation.

    Here the issue of interest is what Bush intends to do with respect to pardons for members of his administration. If the object was to pardon Rumsfeld, Yoo, Cheney and co, this would be a most inopportune moment to raise the possibility that a pardon was not irrevocable.

    Raising the possibility that a pardon can be revoked means that a Carter-style blanket pardon of war criminals acting on Bush’s own orders would be a lot more difficult to sustain.

    There are now less than 30 days left. That means that Bush has already lost the ability to rule by executive order as executive orders only come into effect after 30 or 60 days and can be revoked prior to comming into effect.

    The pardon power is plenary and not subject to the 30 day rule, but it is not absolute. Only crimes against the US can be pardoned. Where war crimes are concerned, a pardon is only a rendition flight away from being nullified.

    The criminality of the Bush administration has demolished the very protections that they must now rely on themselves.

  2. Sherman Dorn says:

    Not a waste at all: when is it a bad thing to get people thinking about Marbury v. Madison?

  3. Jeff Walden says:

    I concur with Sherman Dorn; the previous post in mentioning Marbury furnished an opportunity for me to read it, which I am currently in the process of doing. It’s always a good thing to go beyond the general knowledge of a decision’s implications (judicial review in this case) to the actual decision’s text itself.

    I was going to ignore it, but as the last comment provided a good reason to comment, let me say that the the first comment’s “Since we are talking about the Bush White House, the legal level is considered all but irrelevant.” is uncalled for and is a needless distraction from the constitutional questions that were originally raised. The insinuation that the Bush administration ignores the rule of law is simply not colorable; indeed, it has often (tho controversially) interpreted those laws as granting very broad powers, a nonsensical action if the legal level of running the federal government is irrelevant.

  4. PHB says:

    According to Cheney ‘its not illegal if the President does it’. That would seem to me to indicate a total contempt for the rule of law, for the constitution and for the principles of democratic government.

    They make it up as they go along. Time and again people try to rationalize and explain the Bush administration behavior and time and again we discover that the actual motives and behavior were at least as bad as the worst of their public critics.

    We are now discovering that Bush did in fact sign a document granting all of the pardons. The flummery about executing master warrants turns out to be just that. Under Biddle a pardon is a public act, no need for delivery. It comes into force the moment it is signed.

    Now if you want to consider legal niceties, consider this one. The US courts recognize electronic service of plenty of court documents these days. If ‘delivery’ is a requirement, then isn’t electronic service sufficient?

  5. Jeff Walden says:

    Sure, if you wish to cite out of context and not even cite correctly — that was Nixon, not Cheney, and the actual Cheney quote was:

    WALLACE: If the president during war decides to do something to protect the country, is it legal?

    CHENEY: General proposition, I’d say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.

    Maybe you disagree with “general proposition”, that’d be all fine and good, although I suspect you’ll be singing a different tune come January 20. However, to claim a total contempt when very next sentence requires more specificity and the third claims authority and responsibility directly vested in the president by those laws he supposedly doesn’t care about seems very much to ignore reality.

    As for the signature thing, nothing I have heard suggests the pardon had reached the “sealed” stage, which is where I understood irrevocability sets in. However, I am shocked! shocked, I say! that this would turn into a PR controversy, given the Bush administration’s sterling communication abilities for its actions, ideals, and philosophy.

  6. I suppose that like all other recent presidents GW Bush does not personally sign papers except for photo-ops, but has them signed by a trusted secretary using a signing machine. The case raises the interesting question: how much other stuff has the President sort-of signed by mistake?

    The secretary of Elizabeth I’s Privy Council is supposed to have submitted the warrant for the execution of Mary Stuart several times, concealed in a pile of lesser bumf, to help the Queen get over the hump.

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