From fellow obsessive, TPM Reader JS ...

You seem obsessed by Toussie; so am I. This thing is legally even more complex than you think. Apparently, Toussie wanted the pardon to free him from state law disabilities. I believe that it is state law that decides whether the pardon is effective for state purposes. If I am correct, the state law can ignore a valid federal pardon; it can follow whatever the federal rule may be for a revoked pardon; it can decide for its own whether NY state will recognize the revocation. I don't know what it does, but I think that state sovereignty is pretty unquestioned here. (Warning: I am not a Constitutional lawyer and of course, nothing in this screed is legal advice, or creates an attorney-client relationship. The only thing confidential is, I hope, my name.)

The rubber will hit the road when Toussie wants to get his NY real estate license back. And it will likely be a New York state court that decides.

Late Update: 12/27/08: A few readers have written in to argue that JS is wrong because of the federal supremacy clause: state courts have no standing to judge the validity of the president's pardon. But I think they're missing the point. Technically, the president just kicked Toussie's request back to the Pardon Attorney for a review. But let's assume what's very likely: that his request will now die at the Pardon Office. (Under the Pardon Office's rules, I don't think he's even allowed to apply for a pardon for a few more years.) Sure, if a federal court resolved the issue of whether or not the president could revoke Toussie's pardon, that would settle the matter. And state court's would have to respect that decision. But given that Toussie apparently wanted this pardon to get out of under a state disability, it's not clear to me by what means we're going to get to a federal test case. What seems far more likely is that Toussie will go to the state of New York and ask for his real estate license back. He'll have at least a pretty solid argument that he did receive a federal pardon -- that the president wasn't able rescind the pardon. Then the State of New York -- first whatever agency issues real estate licenses and then perhaps a federal court -- will have to decide whether Toussie has been absolved or not. Of course, I guess, if he gets rebuffed by that agency, Toussie could go to a federal court for relief, arguing they're disregarding the federal supremacy clause. And then a federal court would have a chance to review. Clearly, at this point, I'm way too deep into the federalism thicket for my own good. But it does seem to me that JS is right that the first government agency to have to make sense of this may be part of the State of New York.

Rod Blagojevich insists those wiretapped conversations don't show him doing anything wrong -- in fact, they demonstrate how hard he's worked on behalf of the people of Illinois. That and other political news in today's Election Central Saturday Roundup

Israel unleashes massive retaliatory attack on Gaza. Scores dead.

As you've seen, I've become increasingly interested in this question of whether or not the president can withdraw a pardon, as President Bush has attempted to do in the case of Isaac Toussie. I've consulted a few experts and reviewed various cases. And I'm increasingly convinced that the president did not have the power to do this, notwithstanding the fact that few press reports seem to have taken this possibility very seriously.

Let's break this down piece by piece.

No one disagrees that a presidential pardon cannot be revoked or taken back. The only question here is whether the Toussie pardon had in some sense not yet become official.

And there are two arguments floating around about why this pardon wasn't set in stone yet before the president decided to take it back.

First is the argument put forward by the White House itself, that the president had sent requests for pardons to the Pardon Attorney but that the Pardon Attorney had yet to "execute and deliver grants of clemency to the named individuals." According to the White House press release from Wednesday, the president got to him before he'd done that and "directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie."

But from what I can tell, the Pardon Attorney doesn't '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. End of story.

The second argument has to do with notification. The idea here is that even though the president is the actor, his pardon only takes effect when the petitioner is notified. This reasoning depends on the Du Puy case from 1869, in which the Court ruled that President Grant could take back two pardons earlier issued by President Johnson because the petitioners had not yet been notified of their pardons. But the Du Puy case comes from a technological universe in which the US Marshal's notification would have been the first the petitioner heard about it. But clearly that's not the case anymore. There's little doubt that Toussie heard about his pardon in the news prior to the president's decision to rescind it.

More to the point, from talking to people familiar with the process, I understand that it is standard procedure for the petitioners or their counsel to be notified of their pardon either before or simultaneous with the public announcement. So there's every reason to be believe that Toussie or his attorneys were specifically notified of his pardon, despite not getting the framable document that does not appear to have any legal significance.

Needless to say, I'm not an attorney or a constitutional expert. But I've seen few if any press write-ups with quotes from people with relevant expertise who say the president is actually able to do this. And my discussions with people with relevant expertise give me the strong impression that the president's action is highly dubious in constitutional terms, even if no Court case has specifically addressed this combination of facts.

In any case, I feel sure we won't have to wonder forever. If nothing else Toussie has a solid case to bring. So I feel confident the Court will eventually decide if this passes muster.

With the earlier news about Katon Dawson and his whites only country club and today's revelations about Chip Saltsman, it really does seem like the RNC chairmanship race is down to a straight-up match between the black candidates and the racist candidates.

RNC chair wannabee Chip Saltsman's Christmas gift to RNC members was a CD that includes the Rush Limbaugh "satirical" tune, "Barack, the Magic Negro."

Percentage of Americans "glad [President Bush] is leaving": 75%.

Percentage of Americans who say President Bush "is a person you admire": 27%.

... "brought the kind of change the country needed": 13%.

... "say President Bush is the worst president in history": 28%.

From the latest CNN poll.

With this latest pardon controversy -- and the possibility of more self-serving pardons to come from President Bush (Libby, Cheney, et al.?) -- there's another rush of commentary suggesting we curtail or even abolish the president's pardon power. For my own part, though, not only am I against getting rid of the power, I actually think this current crop of pardons is pretty shabby in terms of stinginess.

President Bush's pardons (these and the ones from earlier in his administration) are mostly pardons for people who committed relatively minor crimes and got relatively minor punishment and have long since served their sentences.

I understand the symbolic importance of clearing people's names. But that's pretty thin gruel. I'd much rather see some people doing serious hard time getting sprung from prison. Long term imprisonment is a life-crushing, brutal thing. Often the punishment fits the crime. But certainly there are more than a few people languishing in prison who, either because of an original miscarriage of justice or subsequent meritorious acts, have a claim on a second chance?

I think the vast majority of people in prison on low level federal drug charges don't deserve the sentences they have. But that would involve so many people that it's not realistic as a wrong to be righted by pardons. And the use of pardons I'm advocating does create an inevitable problem of arbitrariness -- some prisoners have grace come down upon them out of the blue and, inevitably, some others no less deserving get nothing. The whole concept of the pardon power is in uncomfortable tension with the rule of law. In many ways, it's archaic. But I think some leavening of mercy is an essential escape valve to make the justice system actually just. In its punishing capacity, the state is a vast, impersonal, crushing, awful thing. Some sliver of hope is crucial.

Late Update: To drive home the point above, the current formal pardon process requires petitioners to go through the DOJ's Pardon Attorney, a specific career DOJ attorney charged with evaluating pardons. But the Pardon Attorney's petition guidelines require that you have already been out of prison for five years before you even apply. So the only pardons the system even envisages are the essentially symbolic sort -- pardon after you've already done the time. Commutations are different, of course. But the strictures are pretty stiff there too.

The man and woman most admired by Americans? Obama and Hillary, according to Gallup. (Sarah Palin came in second.) That and the day's other political news in the TPM Election Central Morning Roundup.

I went on C-Span this morning. I've been on TV plenty of times, but not in a while. And this was the first time my older son seemed older enough (25 months) to get the concept, that it was kind of neat seeing his dad on TV. So after I left the studio I called my wife.

Apparently it was neat for about two minutes. Then he wanted to watch Madagascar again.

As you know, President Bush took the close to unprecedented step of revoking one of his own pardons yesterday. In fact, from what I can tell, it may actually be unprecedented, since the earlier cases appear to have been instances of revoking a predecessor's pardon. (In other words, this looks like the first revocation on the basis of a goof rather than a difference of policy or opinion.) That's what happened in 1869 when, three days into his presidency, President Grant cancelled two pardons his predecessor President Johnson had given.

In any case, it turns out there's a blog exclusively focused on the pardon power -- pardonpower.com. One of the contributors to the blog, P.S. Ruckman, Jr., did a post earlier today on whether or not the president can revoke a pardon. And he says he's sure the president can do so.

But I'm not sure that's the last word on the matter.

Like others who say that the president can rescind a pardon, Ruckman appears to base his argument on in re Du Puy from 1869. In that case, the Court held that President Grant was within his rights to rescind President Johnson's pardons because they had not yet been delivered to the grantees.

But last night a reader sent in some testimony from the hearings on the Clinton pardons that took place just after President Bush was sworn in in 2001. As you'll remember, they focused heavily on the infamous Marc Rich pardon. And the question came up whether there wasn't something President Bush could do to undo Clinton's pardon.

Key testimony was provided by Margaret Colgate Love, herself a contributor to pardonpower.com and also former DOJ Pardon Attorney from 1990-1997.

When asked by Rep. Hostettler (R) whether President Bush couldn't undo Clinton's pardons under the Du Puy case, she seemed to say that Du Puy had been superseded in this regard by Biddle v. Perovich from 1927 ...

No, once the pardon warrant is signed, that is the public act that accomplishes the clemency action. I believe that Supreme Court case law has made it pretty clear that a pardon is a public act, and so all that business about the deeds and delivery, I think, has pretty much has been overtaken by the Biddle case; that it is a public act and once a warrant is signed--I mean, know from my own experience that we did not deliver pardon warrants, individual pardon warrants, to the recipients sometimes for weeks. I am embarrassed to say, because we just did not--I am sure, frankly, if you look, I suspect that a number of the 176 have not gotten theirs yet, either, and that is a warrant that is signed by Roger Adams, who is the current Pardon Attorney. Roger Adams does not have any authority to do anything other than simply deliver what the President did, and this is a document that somebody can frame and hang on their kitchen wall or something. But it is nothing more than a symbol, a sign of what the President did in signing a document with 140 names on it.

This is not my area of specialty. So I won't try to get too far into the technicalities. But from a quick layman's reading, the issue in Biddle seems to be the reasoning that the presidential pardon power, which grew from royal prerogative, was no longer a private act of grace from a sovereign but a part of the constitutional system. And as such, whether or not it had been delivered was irrelevant.

There are a few things that aren't completely on point in Biddle. It was about a commutation, not a pardon. And that still leaves the issue of whether the pardon didn't really become valid until the Pardon Attorney 'executed' it. But Love seems to have expressed a pretty clear opinion on that too.

Certainly, Love's personal opinion isn't definitive. But as a former Pardon Attorney herself and someone who's now in private practice specializing in pardons, I would think she's as firmly rooted in the relevant precedents and law as anyone. So until I see more, I'm back to thinking that President Bush's revocation of this pardon just may not fly.

As I wrote last night, I'm eager to hear from experts in the field who can shed more light on this.

Only a day after issuing a presidential pardon to Isaac Robert Toussie, a real estate scammer from Brooklyn, President Bush decided to reverse the pardon, after it emerged that Toussie's father had contributed almost $30,000 to the Republican party.

Pardons are absolute. They can't be reviewed or reconsidered or overturned, even by the president who issued them. According to the White House press release, President Bush had sent a "Master Warrant of Clemency" with 19 names to the Pardon Attorney at DOJ to execute. But he hadn't executed it yet. In other words, the White House is claiming none of these folks had actually been pardoned yet. So the president can just send word now not to 'execute' that one pardon.

I'd be curious to hear from constitutional lawyers on this. But I'm not sure the constitution would recognize this distinction. And to be arch about it, I think the unitary theory of the executive would suggest that the pardon is full and irrevocable once the president says he's doing it. The power is the president's -- not the pardon attorney's once the president sends on the request. The constitution doesn't recognize or take any cognizance of the administrative procedures they've developed at the Justice Department.

I would think Toussie's attorneys could make a pretty solid argument that the bell's been rung. Too late.

Any constitutional scholars out there with nothing better to do on Christmas eve than to toss this one around?

Late Update: Or maybe not. A knowledge says there's an 1869 case (in re Du Puy) that holds that the president can take back the pardon as long as it hasn't been delivered to the grantee. A quick read of this suggests that this decision binding. That's an old legal text citing this case to argue what I've italicized in this quote: "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, and a pardon by an outgoing President may be revoked by his successor before delivery."

Late Late Update: A reader passes on some new information suggesting that Du Puy may no longer be the operative precedent in this case and that the Toussie pardon is not revocable. But there are limits on the hours even I'm willing to keep. So this will have to wait for tomorrow -- jmm, 12/24/08, 11:22 PM.

Looks like it's gonna be Sen. Franken (D-MN). Not a 100% yet. But the state Supreme Court just put the kibosh on Coleman's last credible legal angle.

Bye, Norm.

Late Update: Here's Part #1 of our interview with Franken from July 2007 ...

Here's part #2.

Following up on my post below (and the critical phase we're entering in January 2009), here's a question I'm going to be thinking about over the holidays: what are the factions?

We're going to hear a lot of pablum about how we're beyond left and right or how 'liberal' and 'conservative' are outdated constructs. But that's not what I'm talking about. What I mean is that the critical public policy questions we face post-2008 are different enough from those from earlier in this decade and back into the 1990s that the ways we divided up the players in the public square isn't really that helpful in figuring out what's happening or even who we should be supporting.

Let's start with everything from the mid-point of the political spectrum left, or rather the whole 'center' and go left.

What are the factions or groups and what are they pushing for?

And please note that the following is offered in the mod of thinking aloud, less an effort to say anything definitively than to jump start the conversation.

It's seems almost impossible to find anyone who doesn't support vast amounts of near-term (say, two year horizon) stimulus (let's peg 'vast' at $500 billion and up) until you get very far to the right end of the ideological spectrum. You've got political opportunists like John Boehner and Eric Cantor posturing about spending. But I think this is largely a distraction from where even most political people are. (And Republicans are at least a bit wrong-footed in this effort by the massive amounts of government spending their prime business supporters are currently begging for.) You've also got a debate about whether to have stimulus in the form of spending or taxes. But again, at least in broad strokes, I don't see a lot of people seriously arguing for making tax cuts a big part of the equation.

So in terms of the center and the left, the key points are that the usual forces you'd expect to stand against these sorts of policies (Blue Dog Dems, Rubinite economics types, deficit hawks, etc.) have withdrawn their objections and agree that deficit spending and expansion of government expenditure (to the extent it crowds out private sector investment) are not significant concerns over the one to two year time horizon, given the extremity of the financial crisis.

But let's break it down from there. What comes next? What Krugman points to in his Tuesday column is that within that broad, apparent consensus you've got a lot of people who think you spend like crazy to nurse the economy through the storm and then you go back to the status quo ante. As he puts it ...

Right now everyone is talking about, say, two years of economic stimulus -- which makes sense as a planning horizon. Too much of the economic commentary I've been reading seems to assume, however, that that's really all we'll need -- that once a burst of deficit spending turns the economy around we can quickly go back to business as usual.

In fact, however, things can't just go back to the way they were before the current crisis. And I hope the Obama people understand that.

So that's one potential division, considering the center and left. Let's call that the division between those favoring a Keynesian Holiday followed by a return to the same broad economic principles we've been following for ten to thirty years and those who believe that a brief period of massive government spending will have to prepare the way for thoroughgoing changes in national economic policy. In the latter case, perhaps a scale of reform on par with the New Deal, if not the policy prescriptions or precise ideological flavor of the Roosevelt administration.

Next there's a cross-cutting division, though perhaps it's also a matter of emphasis.

There's a general but pretty vague sentiment that a lot of this new spending needs to go into infrastructure and research and development to move toward a green energy economy. But is that really an essential part of the equation for economic and/or environmental reasons? Or is it just something that would be nice to do a bit of as long as you're spending a trillion-plus dollars? That seems like another potential cleavage, though I think almost everyone is being so vague about particulars that it's hard to know where to draw the key dividing lines.

And then a few couple more points. I was talking to David Kurtz a few moments ago and he points out that another potential division, though one that shadows the others, is the question of order and precedence. What comes first? Does mass transit come first? Roads for cars? Green R&D? etc.

And finally there do seem to be some Republicans left. How do they fit in? Or, more interestingly, how do they break down? In a climate of super-high energy prices, there seemed to be a decent-sized constituency on the right for alternative energy sources to cut our reliance on foreign oil. And not all of them thought you could do that by drilling in the US, notwithstanding how many 'wingers seemed to get inappropriately jazzed by hearing a fetching Sarah Palin yelling "Drill, Baby, Drill."

Those are some initial thoughts on how to think of the main political grouping 2009 and going forward. Let me know your thoughts. As a reporter and an editor and someone who cares a lot about this country, this is a question I'm eager to get my head around.

Earlier I flagged the AP article about the environmental activist who snuck into a Bureau of Land Management auction and managed to marginally jack up the give-away prices a bunch of oil and gas companies were going to pay to lease the land. Now it turns out, according to one of our readers, that the 'scam' was only possible because the Bush administration did the whole thing on a rush basis in order to get as much of the public domain given away to energy industry cronies before January 20th ...

The fuss over DeChristopher stems from his disruption of a last-minute push by the Bush administration to give away public lands for a pittance. That's apparently why the rules were changed for this auction, waiving the time-consuming prequalification procedures that would ordinarily have prevented a stunt like this. As one former BLM director put it: "It was rush before the door slams behind them: 'Let's get as many leases out as possible.'"

But what I really love about the story is the complaint that DeChristopher "tainted the entire auction," by running up prices by thousands of dollars on all the lots he didn't actually win. Honestly, I don't understand that. How could bidders have overpaid? They knew what they were buying, and presumably, they wouldn't have been willing to bid
more than they felt the parcels were worth. So the complaint is that DeChristopher's intervention narrowed the spread between the value of the rights and their price at auction. I understand why the bidders are angry, but shouldn't BLM be pleased?

Auctions work on the theory that open bidding will efficiently yield the highest price any bidder is willing to pay. DeChristopher's stunt suggests that, for whatever reason, that's often not the case at BLM auctions. It turns out that, when pressed, most bidders are willing to pay more, often much more. In other words, DeChristopher exposed the
fact that we're routinely selling the rights to public land for less than its actual market value. No wonder BLM is mad.

Only a month before the raid on the public domain comes to a close.

At least for the moment.

From TPM Reader JM:

A a reader from Illinois, I consider it appropriate to try to influence the judges of the Golden Duke Awards.

Sarah Palin's "Bridge to Nowhere" nomination in the category of Best Election Year Fib is certainly appropriate. But her second nomination for General Lying throughout the campaign is dangerous; if you give one Republican a prize for overall disregard for truth, they'll all want one.

May I suggest, instead,.a special category for Sarah Palin? Many organizations provide special recognition to beginners. A bowling league once presented me with a plaster trophy for Most Improved Beginning Bowler. Something similar, like "Best Lying Newcomer to National Politics," would narrowly honor The Barracuda for her dishonesty without causing resentment among veteran competitors.

Such an award would benefit Governor Palin and the American people alike, encouraging her to renew a quest for national office that would provide the nation with entertainment for years to come.

(ed.note: Kurtz's snark is even better: "Nero: Fiddling Was 'Right Approach'")

From the Post ...

Taking a swipe at the shifting response of the Treasury and Fed in addressing the financial crisis, he said: "When these gale-force winds hit our markets, there were panicked cries to change any and every rule of the marketplace: 'Let's try this. Let's try that.' What was needed was a steady hand."

Cox said the biggest mistake of his tenure was agreeing in September to an extraordinary three-week ban on short selling of financial company stocks. But in publicly acknowledging for the first time that this ban was not productive, Cox said he had been under intense pressure from Treasury Secretary Henry M. Paulson Jr. and Fed Chairman Ben S. Bernanke to take this action and did so reluctantly. They "were of the view that if we did not act and act at that instant, these financial institutions could fail as a result and there would be nothing left to save," Cox said.

Although Cox speaks of staying calm in the face of financial turmoil, lawmakers across the political spectrum counter that this is actually another way of saying that his agency remained passive during the worst global financial crisis in decades. And they say that Cox's stewardship before this year -- focusing on deregulation as the agency's staff shrank -- laid the groundwork for the meltdown.