Dan Slater, at the WSJ law blog, also thinks Toussie has a good case for holding on to his pardon. And he also flags some more strong, albeit circumstantial, evidence that Toussie was actually personally notified of his pardon.
In a big change for this country, incoming White House press secretary Robert Gibbs says that Barack Obama “wants and expects” disagreements within his administration. That and other political news in today’s Election Central Sunday Roundup.
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
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.