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Law professor Brian C. Kalt, in today’s Washington Post, takes issue with a recent op-ed by George Lardner, Jr. about President Bush’s withdrawal of a pardon to Isaac Toussie last month.  Lardner is perfectly capable of some missteps in legal reasoning, but on this one he got it pretty much right (see also my previous note on the Toussie case).

What is surprising to me about Kalt’s piece is his blithe certainty about things that just ain’t so.  He suggests that “no precedent” supports the idea that a pardon’s delivery and acceptance are required to complete it.  But he fails to mention two Supreme Court precedents Lardner cited, from 1833 and 1915, that say exactly that.  And he slides rather too quickly from saying Toussie was “contacted by phone” to saying his pardon was “communicated” to saying it was “delivered and accepted.”  I think I’d like a lawyer with more respect for language than that.

I once struck a deal for a new car with a salesman over the phone, right down to the dollar.  But I still had to go to the dealership and give him money, sign a bunch of papers, and take delivery of the car.  A transaction like that has certain terms that must be agreed to between the parties, and those terms are embodied in a written instrument.

So with a pardon.  Even an unconditional one will have terms–exactly what acts are being pardoned, what laws of the United States will not be prosecuted or enforced against the recipient, and so forth.  Only the written instrument of a warrant or letter from the executive can nail down those terms.  Isaac Toussie didn’t get one.  Too bad for him.

Kalt notes that some of President Clinton’s pardons were left undelivered when Bush took office, and that “[s]ome of them still have not been physically delivered.”  But the warrants exist, are considered valid, and are evidently available upon request.  Isaac Toussie’s is not. Too bad for him.

Kalt suggests that if Bush could “take back” Toussie’s pardon, he could have done the same to Marc Rich (if his was one of the undelivered Clinton pardons, which Kalt does not say).  That raises an interesting question.  But it’s not one that bears at all on Isaac Toussie’s case.  Too bad for him.



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