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Can A President Take A Pardon Back?

December 29, 2008

This is one those times when the label ‘geek’ might be rightfully stitched on my sweatshirt.  The news during the holiday period that President Bush granted a pardon to Isaac Toussie only to rescind it a short time later left me wondering.  Uhh? 

Since I had never heard of such a thing happening before I wondered what law allowed for this action to be taken.  I had always understood that once the party to be pardoned was made known of the official action of the President, that the deed was done.  The pardon existed.  So how could Bush undo a pardon, that in this case Toussie would have known about, given the instant modes of communication and how information is passed along to all?

 With the holiday lag time here I had a few minutes to undertake a search for an answer on the internet.   So here is what the Wall Street Journal site has to say about this matter.  I might add that on the WSJ site there are some good comments about this matter too.

President Bush giveth, and then he taketh away. And now the question is: Can Isaac Toussie get it back?

The answer: At the very least, Toussie, the Brooklyn real estate developer whose pardon was revoked on Wednesday, just 24 hours after Bush issued it, has a good case.

“There are two types of pardons — conditional and unconditional,” Harold J. Krent, a Con law prof and the dean of Kent College of Law, told the Law Blog today. “Conditional pardons depend on the beneficiary doing certain things, such as leaving the country or the Communist party, or not consorting with undesirables. There, presidents have the right to determine unilaterally whether someone has failed the condition. But, in Toussie’s case, it was an unconditional pardon. So, in my mind, when the pardon vests or becomes final then it’s a legal act that can’t be revoked. That’s going to be a detail question. Did Bush announce the pardon? Was it delivered?”

So what happened in Toussie’s situation? For starters, the pardon was announced in thisDOJ press release, put out Tuesday. We’re not sure whether, or how, Toussie received notification. However, in thisMcClatchy story about Eduviges Duvi Gonzalez-Matsumura, whose name was on the same pardon list with Toussie’s, Gonzalez-Matsumura said that a DOJ official called her on Tuesday with the news of her pardon.

Where is this delivery requirement found? In an 1869 case in the Southern District of New York, called In re De Puy. In his holding, U.S. District Judge Blatchford implied that a pardon became valid upon delivery to the prison warden in charge of the beneficiary.

“I think it could be challenged,” Dan Kobil, a prof at Capital U. Law School, told the LB. “It should be possible for Toussie’s attorneys to go to court for a declaration that the pardon became effective when the warrant was signed and, depending on the facts, when it became communicated to him or when he read it.”

Kobil cited an old Texas case in which he says the governor tried to similarly take back a pardon and the court of appeals ruled that he could not. There, said Kobil, the court reasoned that the governor is given the power to pardon, but not to revoke pardons. “A similar argument could be made here. Once Bush has done it, it’s not as though he’s a king who can turn around and say, ‘You’re a felon again by way of the scepter.’”

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