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When Does a Presidential Pardon Become Effective, and Thus Irrevocable?

Michael Froomkin (Discourse.net) and Brian Kalt (Concurring Opinions) write about this, in relation to the Toussie story.

some dude:
If I were that guy, I'd consider myself pardoned.
12.25.2008 2:58pm
PersonFromPorlock:
Sigh. I voted for him twice, but in the end Bush couldn't even stay bought.
12.25.2008 3:13pm
RPT (mail):
Interesting news for Marc Holder.

The most interesting and politically significant interpretation will come from the post-election apparent leader of the R's, Mr. Rove, whose planned attack on Holder is (1) based almost entirely on the Rich pardon, and (2) intended to weaken Holder as the incoming AG who will be called upon to continue and investigations of various Bush officials, including Rove himself, based on, inter alia, Siegelman and Scrushy, the now and most conveniently deceased Michael Connell, and so on.

We would appreciate if all of you Vincent Foster case fans would look into the crash of Connell's plane after he had received threats from Rove and his counsel had sought both state and federal protection.
12.25.2008 3:37pm
Oren:

We would appreciate if all of you Vincent Foster case fans would look into the crash of Connell's plane after he had received threats from Rove and his counsel had sought both state and federal protection.

If he thought his life was in danger, he should have taken a commercial flight instead of flying in a single-engine. Either he didn't take the threat seriously or he's not very bright.
12.25.2008 4:05pm
Bill Poser (mail) (www):
Could someone explain why Marshall considered a pardon to be like a deed? It is not obvious to me why.
12.25.2008 4:09pm
Cardozo'd (www):
Could somebody please explain to me why a pardon is different right now, but 4 seconds later after I seal it, it is different? Doesn't this seem awfully arbitrary?

Also, these old cases Wilson and Du Puy seem badly decided on their own. I understand following precedent, but this seems silly. What advantage do you get out of allowing a President to change his mind? It seems to me this would just create a situation where a President could pardon someone and then measure public opinion about it, basically toying with someones freedom in an attempt to better their own position. Which seems to be what happened here...there was a pretty big outcry by the people this guy ripped off, so Bush seemingly revoked it for that reason.

I think these cases are sold old, and not on point, that they can be ignored or overruled.
12.25.2008 4:32pm
RPT (mail):
Our Prediction:

Mr. Toussie, Sr., well known Republican "draft resister" will litigate Jr.'s discount pardon to the Supreme Court and win.

Toussie v. United States, 397 U.S. 112 (1970)
U.S. Supreme Court, (March 02, 1970)
Docket number: 441
Permanent Link: http://vlex.com/vid/20079222
Id. vLex: VLEX-20079222
12.25.2008 4:55pm
RPT (mail):
Given that the press coverage of this change of heart is focusing on comparisons to the Rich pardon (more $$ donated) it may very well be that all of this controversy has been orchestrated by Rove, whose past experience with legal machinations is extensive.
12.25.2008 5:04pm
David Matthews (mail):
RPT

1) Did you actually read the decision in Toussie v United States?

2) If the answer to 1) is "yes," then what possible bearing does it have on the question of presidential pardons?

Or are you just looking for some place to vent your Rove-derangement-syndrome theories that bears even the slightest relationship to EV's post?
12.25.2008 5:45pm
CDR D (mail):
Interesting news for Marc Holder.


Is "Marc Holder" a commenter on here? There are so many, it's really not possible to remember them all.

I didn't see any comment by a "Marc Holder" in this thread, so I have to wonder. Is it an unintentional conflation of "Marc Rich" and "Eric Holder"?
12.25.2008 6:10pm
Dave N (mail):
David Matthews,

I think RPT is figuring that Justices Black, Douglas, Brennan, Marshall, and Stewart were part of the Rovian plot (back when Karl was just 20 years old--the evil bastard).
12.25.2008 6:11pm
TerrencePhilip:
If I were that guy, I'd consider myself pardoned.


Yeah, this one seems bound to end up in court.
12.25.2008 6:23pm
RPT (mail):
Well, you commenters can't see past the most literal interpretation available. Of course we read the case. The point is that Sr. is going to litigate Jr.s pardon and will will. That is the prediction.

Re Rove: He is involved in this matter because he wishes to discredit Eric Holder (thanks for the name correction). We will wait to see what happens with the new DOJ and hope for the best. There is a long public record of his crimes and misdeeds, including those who are imprisoned today through his machinations (i.e Siegelman and Scrushy). A guy who has spoken out on television about every conceivable subject yet refused to appear for any deposition, or any congressional testimony, on the same subjects as to which any privilege is long since waived, is not entitled to any presumption of innocence in the public domain. The RDS may go away if he is willing to testify on all of the subjects to which we the public are entitled to inquire. I would appreciate any substantive defense of his conduct.
12.25.2008 6:24pm
David Matthews (mail):
"I would appreciate any substantive defense of his conduct."

I would appreciate any substantive discussion of the merits of the arguments for or against Bush's retraction of the pardon.

Doesn't look like either of us will be happy.
12.25.2008 6:31pm
David Matthews (mail):
Oh, and: " Of course we read the case."

How many of you are there?
12.25.2008 6:37pm
Josh644 (mail):
Could somebody please explain to me why a pardon is different right now, but 4 seconds later after I seal it, it is different? Doesn't this seem awfully arbitrary?


If the pardon is ever to be irrevocable, there must be some moment at which it becomes irrevocable.

Do you agree that a pardon should be irrevocable?

If so, do you propose a better stage in the process at which to declare it irrevocable?
12.25.2008 6:45pm
David Matthews (mail):
"President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn't final."

By putting the final "sealing" and "execution" in the hands of the Pardon Attorney, it seems that the process has been terribly muddied. The technical question becomes, apparently, whether a Master Warrant of Clemency is a "sealed" deal, and if not, whether the Pardon Attorney had yet bothered to "execute," before the recision order was given, and what exactly is meant by "execute."

It seems that a lot of this could be avoided by going back to the practice of not announcing decisions before actually making them. The issuance of a Press Release is certainly not an official act; lord knows that Presidents go against those all the time. If the act had been kept secret until the Pardon was executed (or not), it seems this could have been avoided.
12.25.2008 6:58pm
Allan (mail):
More to the point: does Dad get his money back, too?
12.25.2008 7:00pm
Sqrjn:
Both of the commentators seemed to ask why should a President be allowed to retract a pardon? But why shouldn't she? If the pardon has not been delivered the finality of pardons is not at issue. Kalt's concerns about a President being able to "un-issue" a pardon and thereby unilaterally impose punishment seems misplaced in situations like this current one.

Froomkin makes two arguments about the propriety of allowing a president to revoke a signed, but undelivered pardon.

1. persons can be pardoned in situations where delivery is impossible or unnecessary, therefore delivery can’t control.
2. it would be bad to create a now-you-see-it-now-you-don’t pardon that some future President Blagojevich could sign but not deliver, tricking someone into acts of reliance to their detriment.

The fact that people can receive a pardon in situations where delivery is impossible, ex. post mortem, doesn't make delivery irrelevant. It simply means that delivery can be made by announcement or general proclamation (and at least in the case of the dead acceptance may be presumed).

As to the other concern I fail to see how allowing a President to revoke an undelivered pardon creates more opportunity for chicanery than the pardon power already encompasses. No one is arguing that a President can't promise to issue a pardon and then change their mind. If the main concern is a President telling someone that they have signed a pardon in order to induce favors the solution is self protection. Individuals should make sure they don't actually pay for their pardon until it’s delivered. Probably the safest mode of corruption would be some sort of installment plan, after this I would certainly insist on it.
12.25.2008 7:24pm
Anon21:
Cardozo'd:
Could somebody please explain to me why a pardon is different right now, but 4 seconds later after I seal it, it is different? Doesn't this seem awfully arbitrary?

The law is full of such arbitrary distinctions. Compare your example (with Marshall) to a signed deed before and after it is authenticated by a notary public. Or a duly-elected public official, before and after s/he has taken the oath of office prescribed for the commencement of his/her duties. In the case of pardons, it seems perfectly reasonable to argue in favor of a different arbitrary distinction--e.g. the time at which the Master Warrant of Clemency is transmitted to the pardon attorney's office, or even the time at which the President issues a proclamation announcing the pardon--but disparaging arbitrary distinctions generally doesn't shed much light on the matter.
12.25.2008 7:47pm
David Matthews (mail):
"even the time at which the President issues a proclamation announcing the pardon"

Seems to me this would be problematic. I can't think of any Presidential decisions that become official on proclamation, before any signed official paperwork. It also isn't clear to me that delivery of a Master Warrant of Clemency would be the time it's official, either; consider your example of having a document notarized. If the Pardon has not actually been executed, can it be considered to be irrevocable?
12.25.2008 7:55pm
gran habano:
I have an idea.

Let's do away with this monarchial notion of executive "pardon".

If these people are subject to the Peoples' justice, then they should be subject to that alone, and not a retail purchase.
12.25.2008 9:39pm
Oren:
Habano, there are very good reasons for a pardon power, in general. See Shay's Rebellion.
12.25.2008 9:55pm
some dude:
The constitution doesn't say what kind a process is required to pardon someone. The president just pardons people. They are pardoned when he utters the words "this person is pardoned."

Once they are pardoned, the offense is removed. There is nothing left to un-pardon.
12.25.2008 10:06pm
Dave Hardy (mail) (www):
Issue came up during Ford's pardon of Nixon, in the form of "does the pardonee have to accept it, and in doing so does he admit guilt?"

I thought it a little strange. I mean, if convicted, which Nixon was not, nobody asked if he accepted the underlying conviction, did they?
12.25.2008 11:02pm
TCO:
The pardon is capriciousand not needed. let's get rid of pardons.
12.25.2008 11:36pm
Allan (mail):
Let's get rid of anti-pardoners.
12.25.2008 11:40pm
some dude:
You can't get rid of pardons. Ron Paul would have very little to actually do when he is elected.
12.25.2008 11:42pm
Soronel Haetir (mail):
Given that the constitution places the pardon power in the sole hands of the President without any direction on how it is to be executed, I would think a general and public announcment should suffice without any paperwork. The paperwork should be treated as a ministerial non-discretionary act once the proclaimation has been made.

I suppose the arguement against this is that it leaves no method for a pardon to be rejected, which is a possibility given that acceptance of the pardon is supposed to signify the acceptance of the underlying crime. Yet more reason to be unhappy with the states that use pardon as one method for correcting wrongful convictions.
12.26.2008 12:40am
Putting Two and Two...:
I don't know if publicly announcing, then revoking, a pardon is legal or not, but it certainly is unusual and sure sounds cruel.
12.26.2008 1:32am
Putting Two and Two...:
If it does turn out that the pardon doesn't take effect until it is signed and delivered by the Pardon Attorney, I suggest we keep an eye on the guy in case he gets any wild ideas about the "unitary executive assistant".
12.26.2008 1:39am
jukeboxgrad (mail):
Via TPM, an article on this matter at a blog totally devoted to pardons.
12.26.2008 8:10am
David Matthews (mail):
I think there's a key sentence in the reasoning in the ruling on Biddle v Perovich, a case that has been cited to claim that the President cannot revoke a pardon before it is received. It is this:

"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Using that line of reasoning, it seems clear to me that Bush is well within his presidential powers to rescind a pardon before it has been delivered. It is his determination as "the ultimate authority" that, in this case, the public welfare would not be better served by inflicting less than what the judgement fixed.

In other words, it's not a game of "gotcha," or a Christmas present from the President; it is the President's determination of what best serves the public welfare. In this case, clearly the President believes that a pardon would not best serve the public welfare.
12.26.2008 10:16am
p. rich (mail) (www):
When Does a Presidential Pardon Become Effective, and Thus Irrevocable?

A badly stated question which assumes the existence of a state of irrevocability, tied in some manner to another undefined condition called "effective", without establishing that a pardon can ever be irrevocable.
12.26.2008 10:22am
MarkField (mail):
It seems to me that Congress could define this and other issues related to pardons under the Necessary and Proper Clause (Art. I, Sec. 8, cl. 18), which reads in relevant part "To make all laws which shall be necessary and proper for carrying into execution ... all other powers vested by this constitution in the government of the United States, or in any department or officer thereof."
12.26.2008 10:35am
arthur (mail):
Some commenters argue that a pardon is effective upon its conception. This is consistnt with New Testament docctrine of divine Grace, but the Constitution does not incorporate the Christian bible into the law of the land. Absent clear constitutional text, the President's right to choose whether or not to bring his own pardon to term should be his personal decision.

This is not to excuse the President. Like his predecessor, he wouldn't be in this fix if he had used more effective pardon control. With criminals like Toussie or Rich, abstinence is the most effecive pardon control.
12.26.2008 11:17am
ed (mail) (www):
Hmmm.

Isn't this question answered entirely within the Constitution?

The President has the Constitutional power to pardon.

There is no mention in the Constitution of any specific process required to complete a Presidential pardon.

There is no mention anywhere within the Constitution of the Presidential power to un-pardon.

Thus, to me at least, the simple answer is that the pardon becomes permanent when the President announces the pardon and that it has nothing to do with signing, delivery or execution.

Bush announced he was pardoned so he's pardoned.

Or is this way too simple for lawyers?
12.26.2008 11:24am
David M. Nieporent (www):
A badly stated question which assumes the existence of a state of irrevocability, tied in some manner to another undefined condition called "effective", without establishing that a pardon can ever be irrevocable.
That's inherent in the notion of a pardon.
12.26.2008 11:54am
Josh644 (mail):
A badly stated question which assumes the existence of a state of irrevocability, tied in some manner to another undefined condition called "effective", without establishing that a pardon can ever be irrevocable.

You'll notice that Eugene's post is abbreviated. That's because (I assume) he intends us to read the linked essays. And in fact, if you read Michael Froomkin's post, you'll find that he discusses the history of the concept of a pardon being irrevocable in the United States.

So could you RTFA already?
12.26.2008 12:20pm
Steve:
The constitution doesn't say what kind a process is required to pardon someone. The president just pardons people. They are pardoned when he utters the words "this person is pardoned."

To me, the lack of a specified procedure simply means that the President has the right to implement whatever process he deems appropriate. It doesn't mean he's forbidden from utilizing any process more complicated than saying "this person is pardoned."
12.26.2008 12:47pm
Alexia:

Once they are pardoned, the offense is removed. There is nothing left to un-pardon.



That's sort of the way I see it. Of course, not being a lawyer it is pretty simple for me not to make things really more complicated than they have to be, but an "unpardon" would seem akin to double jeopardy.
12.26.2008 1:19pm
David Matthews (mail):
For those of you intent on ignoring legal precedent, might I suggest you at least look into the historical precedents?

Jukeboxgrad's link above is very interesting: pardonpower.com.

Pardons have been rescinded previously (before delivery of the actual document), and apparently as recently as 1969.

And you might also want to consider the opinions of those who have thought longer than you or I have on the matter, even if they do happen to be "lawyers."

I'd suggest, for just one example, Justice Holmes, whom I quoted above.
12.26.2008 1:27pm
some dude:
Steve:
To me, the lack of a specified procedure simply means that the President has the right to implement whatever process he deems appropriate. It doesn't mean he's forbidden from utilizing any process more complicated than saying "this person is pardoned."

Agreed. He can implement any process he wants. If the Tuesday announcement said "he is pardoned," then the process he chose was to simply announce the pardon, and he is pardoned.

If the Tuesday announcement said "I will pardon him in the near future," then I would say he is not pardoned until the paperwork is formalized.

I really should look up exactly what the Tuesday announcement said.
12.26.2008 1:30pm
David Matthews (mail):
some dude (and a few others):

I'm curious if you can point to any other place where a verbal pronouncement by the President, or a press release, carries the weight of law, absent accompanying signed and executed legal documents.

I can't think of any, but if you can, it would certainly lend weight to your opinions.
12.26.2008 1:49pm
Eli Rabett (www):
What is the advantage to Toussie Jr to having a pardon? (It may be licensing or something similar). The answer should determine if he will sue.
12.26.2008 2:56pm
CJColucci:
This is a perfect example of a situation where it is far more important that there be some recognized rule than that there be any particular rule. I don't care what the rule is or should be; it's just intolerable not to know one way or the other.
12.26.2008 4:35pm
David Matthews (mail):
MarkField:

"It seems to me that Congress could define this"

I agree that they could. Although the executive branch might complain mightily that this definition infringes on their Constitutional authority.

Apparently though, they haven't. And so the procedure is governed by a series of internal policy directives that normally wouldn't make much difference, except in the cases where 1) policy is circumvented (Marc Rich and Isaac Toussie for just two examples) or 2) someone experiences seller's remorse (Bush, apparently, in the Toussie case).

And then, should anyone push it, it will come down to the Supreme Court trying to divine Presidential intent and Constitutional authority, as against some sorts of irrevocability and double-jeopardy arguments.

It seems clear to me that, given that the power to grant pardons is an enumerated presidential power, all deference should be given to the president in his, however bungled, implementation of that authority.

In other words, if the same person grants, then, before the paper work is completed, rescinds a pardon, he cannot be "trapped" by his own Constitutionally-mandated supreme authority. The president certainly holds veto power over himself.
12.26.2008 4:51pm
pluribus:
ed:

Isn't this question answered entirely within the Constitution? The President has the Constitutional power to pardon. . . . Thus, to me at least, the simple answer is that the pardon becomes permanent when the President announces the pardon and that it has nothing to do with signing, delivery or execution.

Isn't it the fact that, in all (or at least almost all) cases, the president commits a pardon to writing? I doubt he would announce it on his weekly radio address and then neglect to write it down. So the question becomes, when does the (written) pardon become irrevocable? If he writes it down, or has it written down and signs it, but never gives it to the person to be pardoned, or to that person's representative, is the pardon complete? Is it irrevocable? Your answer that, yes, the pardon is "permanent" when it is "announced" does not appear to me to be clear from the constitutional provision.
12.26.2008 6:03pm
pluribus:
Steve:

To me, the lack of a specified procedure simply means that the President has the right to implement whatever process he deems appropriate. It doesn't mean he's forbidden from utilizing any process more complicated than saying "this person is pardoned."

So the president wakes up in the morning and, while in the privacy of his bathroom, says, "John Smith is pardoned." He does or says nothing else. Is John Smith in fact pardoned? Does John Smith know it? Does his parole board, prospective emplower, state licensing board, or doting grandmother know that he is in fact pardoned? How would anybody prove it? Sorry, but I think some slightly more complicated process is required.
12.26.2008 6:09pm
MarkField (mail):

It seems clear to me that, given that the power to grant pardons is an enumerated presidential power, all deference should be given to the president in his, however bungled, implementation of that authority.


I generally agree that enumerated powers should get a fairly broad construction (note the qualifiers). If Congress doesn't want to get involved, perhaps an EO specifying the process would help avoid potential litigation.
12.26.2008 6:49pm
gasman (mail):

Isn't this question answered entirely within the Constitution? The President has the Constitutional power to pardon. . . . Thus, to me at least, the simple answer is that the pardon becomes permanent when the President announces the pardon and that it has nothing to do with signing, delivery or execution.


I'm thinking that if I'm the prison warden then I'm going to expect some paperwork to come my way before I throw open the doors. A few second sound bite on CNN just isn't going to do it for me, even if it does appear to be the stinking president.
The magic word theory, the pardon happens when it crosses the president's lips, just doesn't hold in the real world.
12.26.2008 8:12pm
RPT (mail):
We are still curious as to how this happened in the first place? The Perino "we didn't know about the $" theory doesn't make sense in the Holder context.
12.26.2008 9:41pm
Brian Kalt:
David Matthews,

You wrote:
"It seems to me that Congress could define this"

I agree that they could. Although the executive branch might complain mightily that this definition infringes on their Constitutional authority.

Apparently though, they haven't.

But see Schick v. Reed, 419 U.S. 256, 266 (1974) ("A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress.").
12.26.2008 10:05pm
Soronel Haetir (mail):
David Matthews,

One example I would put forward would be the various civil war amnesties, or the amancipation proclaimation. They became official by the very act of signing (ignoring the fact that it tooks troops to put the latter into actual practice). In the case of the amnesties those wishing to partake had to come forward and take action because the grant was conditional and the people effected were not known in advance. Here the target was entirely known at the time the President signed the order and so that problem doesn't apply.

A different hypothetical, the blanket pardon that BDS sufferers seem to think is coming. How else would any such action take force other than by the very act having the force of law? I would also argue that this is a highly special arena as far as such things go because neither the legislature nor courts have any role in the choices the president makes.

I would also be curious about the civil war era revokation cases on this basis: had the telegraph been accepted as a means of serving summons at that time? Or a legal notices section of the paper? Given that the latter is now (and the former until recently) an announcement plastered across the web, TV and newspapers ought to get the job done. Where a summons presents unfavorable news and therefore should be bound by a more restrictive means test, a pardon is almost certain to be welcome by the reciepient and therefore much looser terms of delivery should prevail.
12.27.2008 12:39am
David Schwartz (mail):
Brian Kalt: The power flows directly from the Constitution, and Congress cannot restrict it. However, I see no reason why they couldn't pass a law to clarify how it happens.

A good analogy might be Constitutional Amendments. Clearly the power to amend the Constitution is set forth in the Constitution itself, and Congress can't modify or remove it or vest it in another entity. But Congress has fleshed out the procedure, and the Constitution itself is lacking in details.

The only argument might be whether it is Congress or the President who gets to flesh out the details. But the idea that nobody can is kind of crazy.
12.28.2008 8:36am
RPT (mail):
The person Blagojevich should be talking to is Brad Berenson.
12.28.2008 5:17pm

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