Not Sure That Flies

December 24, 2008 5:57 p.m.

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.

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