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Bench Memos

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Unpardonable Error--Almost



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On Tuesday, the White House listed Isaac R. Toussie among the recipients of a presidential pardon.  Yesterday, Toussie’s pardon was withdrawn.  It seems Mr. Toussie’s case did not come through the Justice Department pardon attorney’s office with an affirmative recommendation; that the minimum five years normally required had not yet elapsed since his conviction; and that contributions from his family to the Republican National Committee were unknown to the White House counsel’s office when that office put the case before the president.  A bit embarrassing all around, no?  The pardon attorney will now weigh in, but the prospect of a pardon finally coming through for Mr. Toussie looks pretty doubtful.

The interesting question is, can a pardon once made be unmade by the president?  I think not, and my instinct is borne out by this telling detail in the New York Times report linked above:

The Justice Department official maintained that Mr. Toussie would have no grounds to argue that the president could not take back a pardon. “A pardon isn’t official until the warrant is received by the person who requested it, and that hasn’t happened yet,” the official said.

“Take back” is not just how I would have put what is being done here.  It would be more accurate to say that a pardon in process has been cancelled without its having been completed or consummated.  If the pardon had reached Mr. Toussie–and he had accepted it (a final step I once discussed here)–then President Bush could do nothing about it.  As John Marshall said in 1810 in another context, “[t]he past cannot be recalled by the most absolute power.”   A pardon delivered and accepted is a permanent fact with unalterable legal effect.  This makes the granting of pardons a matter for particular presidential care and deliberation–as someone should have remembered in the White House before it was almost too late.



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