Tad More on Pardons

December 25, 2008 8:55 p.m.

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whether President Bush couldn’t undo Clinton’s pardons under the Du Puy case, she seemed to say that Du Puy had been superseded in this regard by Biddle v. Perovich from 1927 …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.

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