Can a President Revoke a Pardon He Has Granted?
PardonPower has very much enjoyed the dialogue that has developed over the last few days regarding the revocation of pardons. While the legal aspects of the question are certainly fun and interesting, this blog is - and always will be - driven by a political science perspective. In short, in this context, it means data are always preferred to theories and empirical research is always preferred to the kind of speculation that is bounded only by who is willing to call themselves an "expert," who happens to pick up the phone and/or how much shame commentators have (or do not have).The delivery/acceptance aspect of the clemency process is gathering a great deal of attention, but we have never meant for that to be the case. Indeed, what has interested us the most, in this wave of considerations and concerns, is the fact that some have noticed the historical examples of revocations that we have brought to light have involved commutations of sentence between or across two presidencies. So, the burning question of the hour is: Have previous presidents revoked their own full and unconditional pardons? If anyone in America can provide a solid historical answer to that question besides us, we don't know who it is. Yes, you read that right. Don't believe it? Call the DOJ for some answers and see what you come up with! Here are some cases of note:
1. The November 11, 1862 clemency warrant granting a "full unconditional pardon" to James J. Palmer was "returned" and "not put into effect." It appears Abraham Lincon never re-issued the pardon to Palmer.
2. Abraham Lincoln cancelled the April 20, 1863 pardon of Nelson Vickery. He then granted the pardon once again on June 27.
3. Andrew Johnson cancelled the commutation of a death sentence for Hebe Outbridge that he had granted on August 14, 1867. He then reissued the commutation on September 17, 1867.
4. On December 20, 1870, Michigan counterfeiter John B. Trout was pardoned by Ulysses S. Grant. But Grant cancelled the pardon then reissued another to Trout on February 5, 1872.
5. John W. Cole was first pardoned of his embezzlement conviction on April 8, 1874, by Ulysses S. Grant. The pardon was cancelled, however, and Grant pardoned Cole again on April 28, 1874.
6. Rutherford B. Hayes cancelled the pardon that he had granted to Mollie Harris on July 27, 1878. He then granted the pardon to Mollie the same day!
7. Chester Arthur cancelled his November 25, 1881, pardon of Illinois counterfeiter John Boatright. Boatright was then pardoned by Arthur again on December 9, 1881.
8. On September 19, 1889, Benjamin Harrison cancelled the pardon of Thomas Hale and re-issued the pardon on September 30th.
9. On September 19, 1889, Benjamin Harrison cancelled the commutation of Benjamin Watson. The commutation was re-issued on October 19.
10. On June 14, 1890, Benjamin Harrison granted commutation of sentence granted to John F. Faulkner. It was cancelled, then granted again the same day.
11. Benjamin Harrison cancelled the July 15, 1890, commutation of sentence granted to Byron W. Brown. It was granted again on July 28.
12. On February 6, 1925, Calvin Coolidge cancelled the commutation of Harry S. Stout's sentence "before delivery." It does not appear that the commutation was ever re-issued.
* We are still looking into at least three additional individual clemency warrants that were cancelled after being signed on 4/23/1867 (Johnson), 6/21/1877 and 7/7/1877 (Hayes). It appears there were not follow-up pardons in these cases.
At this point, we cannot provide a single reason whatsoever for any of these cancellations. But,then again, at this point, we really don't feel the need to. The point is this: presidents have granted full and unconditional pardons then turned around and cancelled them. On top of all of that - in some instances, they have re-issued the pardons. In a recent post, here, we said we had "absolutely no doubt whatsoever" that President Bush could cancel the pardon of Isaac Robert Toussie. That language has drawn considerable attention from readers. But, you must forgive us. We have too much data screaming in our ears. Let it be also known that, in our opinion, Bush's strongest defense for the revocation has yet to be aired or analyzed, in large part because we still do not have anything like a complete picture of what went on between him and White House council Fred Fielding. Developing ...
Labels: Context
posted by P.S. Ruckman, Jr. @ 10:44 PM
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So we're supposed to believe that that Bush has revoked the Toussie pardon because of the "appearance of impropriety?" What a hoot-- his entire eight years in office has been an exercise in impropriety.
There is something fishy going on here, and as usual the trail leads to Karl Rove. Apparently he is directing the GOP effort to de-rail the Eric Holder nomination to be Attorney General, and one of the issues they will likely bring up is the fact that back in the Clinton era, Holder prematurely signed off on the controversial pardon of Mark Rich. That pardon was not properly vetted, and it turns out that the recent Bush pardon of real estate scammer Toussie didn't go through the proper channels either.
So my bet is that Rove told Bush to revoke the Toussie pardon, so that when Holder's hearing takes place before the Senate, his Democratic supporters will not be able to defend Holder by pointing to the similarity between the two poorly-handled pardons.
A conditional pardon is revocable at any time prior to the conditions being met. In a conditional pardon the conditions annexed are either precedent or subsequent. If the grantee does not perform the conditions precedent the pardon does
If the grantee does not perform the conditions precedent the pardon does not take effect.
If the conditions are not performed the original sentence remains in full force. In re Flavell 8 Watts & Sergeant Penn. 197; Ex parte Alvarez 50 Fla. 24. This was probably the kind of pardon John B. Trout received. John B. Trout, a well known and desperate coney man, once the terror of the whole Mississippi Valley, now in the Kentucky penitentiary, serving out his second long term of imprisonment for counterfeiting.
In 1866 Boyd engraved the plates for counterfeits of the twenty dollar United States Treasury notes, series of 1862, which plates were owned jointly by Ben Boyd, Peter McCartney and John B. Trout, and captured by the Secret Service Operatives during 1866.
U.S. v. John B. Trout (Indiana) Cases argued and Determined in the Circuit & District Courts of the Seventh Judicial Court p. 105, June 1867.
http://books.google.com/books?id=Ovw7AAAAIAAJ&pg=PA105&dq=%22John+B.+Trout%22&client=firefox-a
In the “Memoirs of the United States Secret Service by George Pickering Burnham is a story called The Skeleton Witness: Fate of a Counterfeiting Family, “The Johnsons.” Which is about John B. Trout testifying for the government against the Johnsons.
http://books.google.com/books?id=SFNJAAAAIAAJ&pg=PA250&dq=%22John+B.+Trout%22&lr=&client=firefox-a#PPA246,M1 .
This was 1869. He should have gotten his pardon in 1870!
Yes, but all of these pardon cancellations predate Biddle (1925) and Schick (1974), so while perhaps cancellation was possible in the 19th century it may be different now, with some important court precedents behind us.
Moreover, the whole idea of cancellation is troublesome. If there is the possibility of cancellation, just how long could the gap be? Could President Obama pardon someone on the afternoon of January 20, 2009, and unpardon the same person on the morning of January 20, 2017? There is no unpardon power in the U.S. Constitution, is there? So why should 5 minutes be any different than 8 years? A pardon is inherently permanent in nature, isn't it?
In any event, isn't this a question for the Supreme Court, which will consider 20th century precedents, not only 19th? And why should it be at all surprising that the Court had to tidy up our understanding of a constitutional power? That's their job.
This is a great blog, but I'm not sure I understand something. You say that presidents who have cancelled pardons have "in some cases" re-issued them, but it looks like there was a re-issuance in each of the examples you list. To me, the fact that presidents have cancelled and then re-issued pardons does not answer the question of whether presidents have the right to cancel the pardon in the first place. After all, if a president claims to cancel a pardon, but then re-issues it, the pardonee is in no worse position than he would have been had the pardon never been cancelled on the first place, and has no standing to litigate on the issue. Therefore, even if the purported pardon cancellation was invalid and had no legal effect, there still isn't anything for a court to decide, and no legal precedent has been set. It's only when a president issues a pardon, then cancels it, and then the pardonee seeks to have the cancellation ruled invalid, that we would have a substantive legal ruling on the issue.
EDITOR:BLUEMAN, you are right "these pardon cancellations predate Biddle (1925) and Schick (1974)" and "it may be different now." But, until we know it is different because we have been explcitly told by the U.S. Supreme Court, let's just agree to can all of the nonsense about such actions being "unprecedented." They are not. Just that simple.
EDITOR:Mark (Brown), I triple checked the Trout warrant of 1870. It says "full and unconditional pardon." The 1972 warrant uses the same language. These were not conditional pardons. Thanks for the backgound on the case though. I will look through it because I am simply hypnotized by this out dated - beta version - ancient history - Antique Roadshow - Gilded Age stuff! :-)Best,
>>At this point, we cannot provide a single reason whatsoever for any of these cancellations. But,then again, at this point, we really don't feel the need to. The point is this: presidents have granted full and unconditional pardons then turned around and cancelled them. On top of all of that - in some instances, they have re-issued the pardons. In a recent post, here, we said we had "absolutely no doubt whatsoever" that President Bush could cancel the pardon of Isaac Robert Toussie. That language has drawn considerable attention from readers.
That's because your language is ambiguous and uninformative. What does it mean to say a president "can" cancel a pardon. Does it mean they can *say* they've cancelled it, and other people (who have influence in these matters) will let them get away with it? Whooop-de-do. If that's what you mean, nobody cares. People get away with illegal conduct all the time, including the President. You reporting that the President "can" get away with illegal conduct is not interesting.
If you mean the President can *legally* (has a legal right to) cancel a pardon, then you've failed miserably at establishing that claim.
And obviously, you can't mean the President has a moral right to cancel the pardon.
So I'm not sure why your language has drawn attention. You haven't made any interesting claims.
You have not quite proved your point. Like other legal acts (deeds, judicial decisions, electoral nominating papers), presumably pardons can be prepared and signed IN CASE the maker decides to carry them out. Think of checks and signed deeds placed into escrow, but to be delivered and recorded only upon conditions of closing. Thus, as your posts make clear, it is uncontroversial that a President can change his mind before an executed pardon is delivered. Similarly, if a President signs a pardon for Jane Smith, intending to pardon Jane Smyth, and immediately realizes a mistake has been made, presumably the President can "revoke" the erroneous pardon in the sense of declining to deliver it.
Based on another one of your posts, On the Revocation of Pardons, you use these refusals to deliver in the same sense as revocation. But they are not the same, in that a refusal to deliver is an easy case, but revocation of a properly executed and delivered pardon is much harder. Your post makes the point: "Grant also revoked the pardon of James F. Martin, but the New York Times, reported that the official order from the State Department reached the U.S. Marshal in Massachusetts "too late." That is to say, Martin had accepted his pardon and had exited the premises. No effort was made to put him back." Thus, even when "revocation" was quite common, you have not (yet) shown that it applied to pardons already put in the hands of beneficiaries. Any examples of that specific scenario?
12/27/08 12:38 Anonymous, top notch.
EDITOR:Anon 12:38 asks "What does it mean to say a president "can" cancel a pardon?" and asks that all consideration of the question be relegated to the world of legal speculation. The additional mandate is that we accept only his/her view and that we pretend as though the Supreme Court has never addressed this issue at all. It folows that the past practice of 6-7 presidents, to Anon, only shows "people get away with illegal conduct all the time, including the President." I am not familiar with the precedent for this logic, which may very well explain why I have made "no interesting claims" - and hope never to do so! Bottom notch.
The history smacks to me of cases where President's revoked pardons, only to be told by legal counsel that there weren't allowed to do so, and reissured the pardons in order to eliminate any ambiguity over the ultra vires acts.
Also, notably, none of the cases were litigated. The analogous cases, in my view, would be those where courts have held that once an offense is barred by the statute of limitations then in effect, fully and finally, that it may not be brought in the future, even if the law is changed.
There mere fact that a President has purported to have the legal authority to do something, doesn't mean that the President is always right.
EDITOR:Andrew; Were it correct, it would be wildly fantastic for critics of the president. But, the "smack" you describe would indeed be wildly fantastic and highly improbable. That many cases would have left a trail of paperwork without a court case. And, in the case of Harry Golden, your suspicion is entirely wrong (and in the case of the DePuys for that matter.
I think what is emerging here is a nice difference between a political science perspective and a legal (lawerly) perspective. When a political scientist says a president "can" do something (in this case, revoke a pardon) he/she means 1) he has done it 2) other presidents have done it 3) repeatedly 4) and the Supreme Court has considered the questions directly and allowed it.
When a lawyer says a president cannot do this, he/she means 1) if the right case is brought 2) to the right court 3) and it adopts an interpretation of two cases which do not direclty deal with this issue 4) then the president might lose. Best,
Obviously, no one has posted here in almost 4 months, so hopefully someone will see this. I have two questions which I have been unable to find the answers to:
1) What was the outcome on the 3 revocations that never received follow-ups. In every revocation, except De Puy (and Hoffa, but he disappeared), that I can find the President eventually re-grants the pardon. These are the 3: 4/23/1867 (Johnson), 6/21/1877 and 7/7/1877 (Hayes).
2) Where does the requirement that the president issue a warrant of pardon come from? In other words, if there is nothing requiring this then maybe the pardon need not be signed or sealed. My assumption is that this was merely a result of practical concerns. But if there are no guiding principals then the President has extremely broad discretion (so log as he doesn't violate the Constitution or the vested right of a 3rd party) to determine how someone is notified and what may constitute delivery. Any judicial challenge would likely result in a political question as I understand things.
Any help to satiate my curiosity would be greatly appreciated.
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