George W. Bush’s Christmas Present To Con Law Geeks

The President pardoned some dude of white collar crime. Then, after the media pointed out that this dude’s relatives poured phat cash into the GOP machinery while the pardon application was pending, the President decided he didn’t like how that left him looking.

So he revoked the pardon. That left everyone who was paying attention saying, “Can he even do that?”

The Constitution itself provides no answer. Article 2, Section 2 says that the President “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” It is silent on the issue of revoking those pardons.

There’s three cases to take note of that the scholars have found. The first is everyone’s favorite Con Law case, Marbury v. Madison (1803) 5 U.S. 137. That case had to do with whether the Secretary of State had discretion to not deliver a fully-executed appointment to a judge after a change in Presidential administrations. President Adams appointed Marbury to a judgeship, and then President Jefferson took office and instructed his Secretary of State, James Madison, to withhold the delivery of the appointment. The Supreme Court ruled that indeed, Marbury had a right to delivery of the commission and the courts could fashion a remedy requiring Madison to deliver it. Famously, the Marbury Court went on to say that the law Marbury had tried to sue Madison on was unconstitutional because it purported to change the Supreme Court’s original jurisdiction, and therefore Marbury had to start over in the right court, which snatched a larger victory out of the jaws of defeat for the Federalists and created a system of judicial review that survives to this day in our legal system. But the point applicable here is that Marbury had a legal right to delivery of the commission.

Now, Chief Justice Marshall, who wrote the opinion in the Marbury case, later in his career looked directly at the pardon power in the case of U.S. v. Wilson (1833) 32 U.S. 150, 161. Here, Marshall wrote:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Now, this suggests that a pardon might be treated differently than an appointment, and a pardonee might not have the same right to delivery of the pardon as an appointee.

Why on earth, you might ask, would a recipient of a Presidential pardon reject it? Two reasons suggest themselves. First, the pardonee might view accepting the pardon as admitting that he committed the underlying crime. By accepting the pardon, he is admitting guilt, and he might wish to do something to prove his actual innocence. Second, a pardon can be conditional, and the pardonee might reject the conditions. For instance, the pardon might be conditioned upon the issuance of an apology, or restitution, or a commitment to do something or give something up.

This was exactly the case in the cae of In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869). In that case, President Andrew Johnson pardoned a prisoner of tampering with the mail on March 3, 1869, and President Grant then took office and revoked the pardon on March 6, 1869. The De Puy Court held that the pardon had been properly withdrawn, because on March 6, neither De Puy, his attorney, nor the warden of the prison had received it.

In my mind, the De Puy case seems to govern here. If Bush’s pardonee (convicted mail defrauder and perjurer Isaac Robert Toussie) had not received the pardon, then the President can revoke it and it’s as if no pardon had ever been issued. What’s interesting is that it’s pretty clear that Toussie, or at least his attorney and the warden of the prison, knew of the pardon, because it was both on the national news and part of the public record that, in today’s day and age, gets posted on the Internet immediately after it is done. And in this case, Toussie had applied for a pardon using the standardized process created by statute and long-standing executive order to handle these things, so having asked for the pardon, we can hardly infer a possibility that he would have rejected it.

Now, it’s still not clear exactly how far the paperwork got. It appears that Bush put Toussie’s name, along with some other people he was pardoning, on a Grand Warrant to the Pardon Attorney, who is a functionary of the Executive — meaning, particularly under Bush’s “unitary executive” theory, that the Pardon Attorney is an extension of the office of the President. That would mean that execution and delivery of the warrant of pardon is a purely ministerial act. If so, how much significance do we want to attach to that purely ministerial act?

When I volunteer my time and serve as a pro tem judge, I have the power to change my mind about an order that I make. Sometimes a clerk points out that a ruling I make is beynd my statutory authority or I learn some fact about a case that changes my mind about an issue — I have the power to issue a new order nunc pro tunc — “nunc pro tunc” being law-Latin for “voids the prior, contradictory order, as though it had never been made.” If the earlier order has not yet been executed, it’s a no-harm, no-foul kind of situation. “Real” judges have the power to void their prior orders nunc pro tunc, too.

So here’s the alternatives. On the one hand, we can say that once the President himself says “I pardon this guy,” the moment he says that everything else is simply a matter of mechanically giving effect to the President’s order, which means that once the President says it, it’s done. On the other hand, we can say that the President has the ability to reverse himself nunc pro tunc or something akin to that, given that he is operating in a checks-and-balances role against the judicial branch of the government.

I tend to favor the second school of thought. If the pardon has not been mechanically completed, then the President can change his mind (or be replaced by a successor, who might revoke the pardon). This has the disadvantage of leaving significance with certain ritualized or bureaucratic functions of the government before an order takes effect, producing a slower-moving government. But on the other hand, it is unreasonable to presume that the government’s orders and actions are instantaneous. The point here is that the Presdient is exercising one of his powers and he enjoys a degree of latitude in how he goes about doing that. If he does something and then decides that it was a poor idea, we want to give him the ability to change his mind and correct the situation — and better that he does that on his own than another branch of government have to step in and correct him.

Toussie’s knowledge that the President had authorized the pardon is irrelevant. I have a client who has been sued, but not yet served with a summons. The client knows full well that the lawsuit has been filed against him, because I downloaded it from the internet and showed it to him. But he hasn’t been served with a summons, so he has no obligation to respond to the complaint. Same thing with Toussie — he may have known that the President issued the pardon order, but until the processing of that order is complete, the pardon is not effective and therefore can be revoked.

So, sorry, Mr. Toussie, but I think that as things stand today, you have not been pardoned.