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 Yesterday, Toussie’s pardon was withdrawn.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.