Friday, December 26, 2008

Rescinded Pardon

Ken Belson & Eric Lichtblau over at the NYTimes have an article, A Father, a Son, and a Short-Lived Presidential Pardon that tells of President Bush's rescinding a pardon when he learned that the father of the pardoned individual had donated money to Republicans.  This blog discussed these pardons here. Several items of interest here:

  • The president seems to believe that he has the power to rescind a pardon. The NYTimes article states that "the Justice Department said it believed that the original pardon announcement was not binding and could be revoked because Mr. Toussie had not received formal notification of the president’s action."  How formal does the notification have to be?  Isn't a DOJ Press Release sufficient? Yes - a DOJ Press release that explicitly begins -  "WASHINGTON – On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual"  and then includes:

    Issac Robert Toussie - Brooklyn, N.Y.
    Offense: False statements to the U.S. Department of Housing and Urban Development, 18 U.S.C. § 1001; mail fraud, 18 U.S.C. § 1341.
    Sentence: Sept. 22, 2003; Eastern District of New York; five months in prison, three years of supervised release conditioned on five months of home detention, $10,000 fine."

  • If they hadn't asked about political contributions previously, and had no knowledge of the political contribution at the time of granting this one, then why rescind this pardon? Do you rescind something just because it looks bad?
  • It sounds like the father made the contributions and not the son.  Do you rescind a pardon because of acts of a parent?  And should all people and their families who might be interested in obtaining a pardon need to beware of their contributions and not make any political contributions because it may result in a rescinded pardon if someone finds out about the contributions after the fact?
  • If the pardons are going to the white house and not DOJ, then are pardons limited to those individuals who have access to the white house?  What does this say about the process and individuals who can't hire a lawyer who can petition a pardon from the white house? One certainly can't count on a public defender for this. If the DOJ is not going to be used, then perhaps the President needs an internal pardon officer to review all the petitions.
  • And should this case have been considered for a pardon?  See Peter Wallsten, LATimes, Bush withdraws fast-track pardon It doesn't seem like the victims believe this merits a pardon. See Sumathi Reddy, Michael Amon, Patrick Whittle & James Bernstein, Newsday, Bush defends Suffolk real-estate swindler pardon
  • And has President Bush just assured the confirmation of Eric Holder as AG - after all Holder did not have the opportunity to rescind the pardon given by the President - so can you really hold it against him? Or maybe people will start looking at the rest of Holder's record and see where he stands on items like the Holder Memo (see here).

Sometimes you make mistakes, and you have to live with them.  But it is also important to learn from your mistakes.  President Bush needs a better system for reviewing and granting pardons.  But the pardons are an important part of the presidential powers and hopefully his mistake will not cause him to stop reviewing the many meritorious pardons that need consideration.

See also Dan Slater, WSJ Blog,  Pardon Goes Awry, Thanks to White House Counsel’s Advice; Doug Berman's Sentencing Law & Policy here and here.

(esp)

Addendum, Brian Kalt, Concurring Opinions here and here

Statement by the Press Secretary, White House here

Instapundit (also citing the Pardon Power Blog) here

Pardon Power here and here

http://lawprofessors.typepad.com/whitecollarcrime_blog/2008/12/rescinded-pardo.html

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Comments

As to the query, does Toussie deserve a pardon ? that is not appropriate in my view. So many petitioners have a "just case" to plead no matter the nature of their offenses against the Body Politic. My question would be, what of the White House Counsel's actions in an legal ethics dimension. If I were family to Monsieur Toussie, I would examine this angle thoroughly. This is hardball in the extreme now that Toussie is apparently doomed and damned by the machinations of a dying, sputtering White House.

Posted by: Thomas Barton, J.D. | Dec 27, 2008 5:05:27 AM

"If":

(a). "they hadn't asked about political contributions previously, and"

(b) they "had no knowledge of the political contribution at the time of granting this one,"

then

"why rescind this pardon?"
- - - - -

Answer:

(1). Prove (a), sufficiently to convince the 1/3 of the country that still believes the "Bush lied!" lie.

(2). Prove (b), sufficiently to convince the 1/3 of the country that still believes the "Bush lied!" lie.

Once you nail (1) and (2), call me. The rest will be easy.

(C'mon. You've given the rational, common-sense response ("so what?"), with little or no regard for the context. The appearance of a possibility of a chance of a tendancy for some to mistakenly or malevolently ascribe venality to something that Bush did, or almost did, or didn't do but which the malevolent types wished he had done, is as bad as an actual incident of genocide. Read the New York Times. Try to keep up.)

Posted by: Bobby_B | Dec 27, 2008 5:06:23 AM

Kinda like Algore rescinding a concession?

Posted by: CharlieDontSurf | Dec 27, 2008 5:06:49 AM

Everybody always knows better than the President what he can and cannot or should and should not do. Does he not have advisers?

Why can't people just leave the man alone?

Posted by: JF | Dec 27, 2008 5:07:10 AM

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