On the Revocation of Pardons

"Experts said they knew of no other instance in which a presidential pardon had been revoked. They said it was not clear whether Bush was legally allowed to do so." - Chicago Tribune, December 25, 2008

One can hardly blame the Tribune for printing this statement. Lord knows countless other news agencies are doing the same thing today. There were deadlines to meet. There are plenty of people willing to talk about pardons, and even more willing to talk about the president! But there are very few people who have actually researched and written on the pardon power and deserve the title "expert." My forthcoming book dedicates considerable space to the topic of pardons that have been revoked. Here are just a few notes to share on the topic. This is not the appropriate forum to be comprehensive:

Ulysses S. Grant's first clemency decision, on his third day in office, was to revoke two pardons granted by Andrew Johnson. Both men challenged Grant's power to do so, and lost their case in federal court. A central passage in a judicial opinion read:

If the president can arrest the mission of the messenger went the messenger has departed but ten feet from the door of the presidential mansion, he can arrest such mission at any time before the messenger delivers the pardon to the warden of the prison.

The fact that "the president" - in this case - meant two different presidents (Johnson and Grant), and the fact that - in this case - the warden had actually received the pardons but simply stuck them in his desk for a while, did not matter. The pardons had not actually been placed in the hands of Moses and Jacob DePuy, so the two men stayed in prison and were pardoned (by Grant) later.

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.

Finally Grant revoked the pardon of Richard C. Enright, who was sentenced to 18 months in prison and fined $2,500 for conspiracy to defraud the government. Johnson granted a full pardon 12 months into the sentence but, before the pardon could reach Enright's hands, Grant revoked it. Enright had to cool his heels another 8 months.

In a 1975 article for Case and Commentary, distinguished attorney Melvin H. Belli referred to an instance in 1969 when the President "managed to head off a pardon granted by the previous President." According to Belli, a telegram was sent to "waylay" the pardon "just before it was delivered into the hands of the intended receivers."

Of course, in 2001, there was some speculation that President Bush might revoke the pardon of Marc Rich. To be sure, behind the scenes, there was some consideration of precedent and case law that emerged during the Grant administration. But, in 2001, there was a different mindset about the importance of receiving a pardon. Which is to say, the importance of receiving a pardon was no longer considered a critical factor in assessing its validity (Henry Flipper did not receive his pardon. He was dead). While this approach certainly has its logic, it does raise the interesting question: where does the life of a pardon begin? Bush might argue that no individual clemency warrant was signed for Isaac Robert Toussie. Critics may say the appearance of Toussie's name on a "master warrant" is enough. It may simply take the President saying, "Toussie is pardoned." The problem is that there is a clear void where a theory once hung around.

Can George Bush revoke the pardon of Mr. Toussie? There is absolutely no doubt whatsoever, in my mind, that he can - "can" here means, he can do it and withstand a legal challenge.

Should George Bush revoke his own pardon? Probably not. Instead of using this fisasco as a chance to throw mud at people below him, Bush should instead use it as an opportunity to recognize that, when presidents are stingy with pardons and leave thousands of applicants high and dry, wealth, influence and access are much more likely to wiggle their way through the cracks and infect clemency decisions.

The solution is to staff and fund the Office of the Pardon Attorney more generously and grant more pardons on a regular basis, encouraging the idea that applications will receive a fair shake and reducing perceptions that one has to end-round the process to have even the proverbial snowball's chance.