Friday, December 26, 2008

Comment: Welcome to the Gilded Age of Pardons

Brian Kalt, at Concurring Opinions, would like to dismiss our recent examples of revoked clemency decisions and cancelled presidential pardons as the residue of "a Guilded Age history of revoking pardons." And, with this semi-cute turn of phrase, Kalt settles comfortably back into insisting "pardons can't be revoked." We explain to Kalt:
... anyone who has seriously researched pardons knows the best information can be gotten in the period 1789 to 1932, before the DOJ stopped reporting on individual pardons. As a result, we cannot say that the lack of "more recent" examples (is any example recent enough?) is a function of there being no such examples. The lack of more recent examples, so far as we know, is a function of a lack of information.

From my perspective, if I just casually glance through pre-1932 data and spot a half a dozen examples of something, I am pretty comfortable guessing there are other examples pre- and post- 1932 ...
We have no intention of defeating every arbitrary barrier that Kalt (or anyone else) constructs as to the end-all point in time after which an example must appear (in order to qualify to be "modern"). But, having reviewed the data, and having done our homework, we are nonetheless confident in our general position.

On December 20, 1972 (somewhat near the end of Kalt's "Gilded Age" we suspect), Attorney General Richard Kleindienst signed a clemency warrant, as was commonly done, "by the direction of the president." The full and unconditional pardon was not supported by the U.S. Pardon Attorney. Sound familiar? Both the warrant and the pardon that it ordered were voided. The pardon was not granted until December 5, 1973. Why? Don't let us hold anyone back on this. Jump in and impress. Shock and awe us!


Brian Kalt said...

Prof. Ruckman,

I'll post this here and as a comment to your post at Pardon Power.

Your knowledge of and access to one sort of precedent (individual pardons) is obviously superior to mine. Nevertheless, I hope I can respond without angering you further.

First, regarding your suggestion of bias. I don't understand who you think I am biased for or against here, but the reason that I continue to make my arguments is simply that I have a certain view of the pardon power. There is no clear, direct case law to support me, and there is none against me either. Correct me if I am wrong, but none of the revocations you cite were challenged in court, let alone affirmed there.

Now certainly, the fact that you have a lot of examples--and not all of them "Gilded Age"--is entitled to considerable weight. But it doesn't close the book. There are certainly examples in other contexts of courts calling precedent practices into question, particularly during periods when the court is feeling formalistic.

Second, you say the lack of examples of pardon revocations since 1932 is the result of a lack of information, because DOJ no longer reports on individual pardons. I certainly agree that here, "absence of evidence is not evidence of absence." On the other hand, it doesn't prove the opposite either. I found it interesting that your examples in the blog post I linked to were in the 1860s, 70s, and 80s. What happened between 1881 and 1932, then? I don't know--maybe you have examples from then too--but maybe there were shifts in bureaucratic processes or in the understanding of the pardon power. Any such differences would surely be parsed very closely by lawyers for Toussie, the White House, and the courts in any litigation over this issue.

As for the more modern precedents, as I tried to make clear in my original post, I am talking not about precedents of pardons that presidents tried but failed to cancel (obviously if there were any such precedents, there'd be little to blog about here). Rather, I was talking about "precedents on the nature of the pardon power." And by that I meant Biddle as compared to Burdick, on the question of whether a pardon must be accepted. I meant Schick as compared to Wilson on the nature of the pardon power.

Schick suggests to me that Congress could not set up a statutory procedure that makes a president jump through a bunch of hoops before his pardons can be effective. The question then becomes, at what point has the president bound himself?

You ask, "What are the 'modern precedents' which clearly say a pardon cannot be cancelled?" Do you in fact disagree that there is a point at which a pardon is a pardon, and cannot be cancelled? Or do we agree that there is a point at which it becomes effective, and we are just disagreeing where that point is?

Finally, I am intrigued by your 1972 example, in which you say "Attorney General Richard Kleindienst signed a clemency warrant, as was commonly done, 'by the direction of the president.' The full and unconditional pardon was not supported by the U.S. Pardon Attorney. . . . Both the warrant and the pardon that it ordered were voided. The pardon was not granted until December 5, 1973."

With the same caveat as before (the court cannot reject a revocation that was not litigated, and so this precedent, while significant, is not as weighty as one that made it into court), and deferring to your greater familiarity with that case, I'll just ask this. Why was it voided?

If (1) Nixon had formally signed off on the request; or (2) formally delegated general authority to the AG to act on his behalf, and if Kleindienst was acting properly according to either sort of authorization, then I'd concede that that precedent is indeed very harmful to Toussie's case.

P.S. Ruckman, Jr. said...

EDITOR:Brian, No "anger" here. Although your use of the phrase "to be sure" (in your original post) seemed unnecessarily belittling. I don't think those examples were "sure" at all, much less an "Age" of examples. Every news organization in America called the revocation "unprecedented." I don't recall you or any other person in America - other than myself - coming up with examples to the contrary, certainly not any more than the DePuys. And, right now, I am guessing you cannot come up with a single additional example yourself. But that's OK. That doesn't sound like a "sure" scenario to me, or a well known "Age" of scenarios.

Thank you for saying what really needs to be said right now, over and over and over - there is "no clear direct case law" to "support" your position on revocation of pardons.

That being said, yes, we can ignore historical examples of presidents revoking pardons, dozens, or perhaps hundreds of them. Sure. And, as we find each one, we can distinguish and qualify and continue to sail the ship because there is no case law "against" your position either. But, as a political scientist, I can't go for that ride.

I cannot explain the lack of information problem in pardon research any better than I already have. So I will not try. But you are right. If 60,000 pardons were revoked pre-1932, that does not "prove" it happened a single time after 1932. I cannot disagree with that at all. Indeed, that is exactly why I made only a casual glance through the data. Because I knew before I even started that it really would not matter how many examples I found.

I ran into a similar situation with Marc Rich. He was a fugitive from justice. Everyone wanted to call that situation "unprecedented" - because it makes for a good headline and sells papers. I think I found (again, very casually glancing), in Annual Reports of the Attorney General, about one pardon of a fugitive every two years, from the late 1800s to 1932. I felt comfortable guessing I had missed some. And I also felt comfortable guessing the practice did not suddently stop in 1932 and pick up again with Bill Clinton. But that is just me.

Do I think "there is a point at which a pardon is a pardon and cannot be cancelled?" No. My knowledge of clear, direct case law and history tells me otherwise. Do we "agree that there is a point at which it becomes effective?" Probably not, but I don't really have the strong sense that that matters a great deal.

Intrigued by my 1972 example? Of course. But the point is this: it doesn't matter. You seem to have bought into a net interpretation of Court opinions which do not address this issue. And that is fine. But I would insist that we keep a nice separation between normative analysis (how the law should apply to this case) and empirical analysis (what presidents have actually done and what no court has disallowed). Instead of saying "pardons cannot be revoked" (which sounds snappy, I admit), you should take more care to say, "I don't think pardons should be revoked any more given my interpretation of Supreme Court opinions which do not address this issue."


Kallisti said...

Dear Prof. Ruckman,

I find your blog and your research very interesting and enlightening! The perspective that you present in your recent posts on the Bush/Toussie situation is greatly needed for a better understanding of the historical context.

However, I would like to point out that I believe that you are continually making claims broader than only about political science, as you asserted was the scope of the blog in your post of 10.44p Christmas Day. To me it also seems that you are changing the scope arbitrarily and as it suits you.

I believe that if you claim that you have no doubt Bush "can do it and withstand a legal challenge"(1) you are making a claim as to the legal aspects - not a policital science statement based on researched data. Or theories and speculation rather than data and empirical research in your words.

A conclusion that I would be comfortable to draw from the data as presented by you is that former Presidents has [revoked pardons] without legal challenge which is a far cry from claiming anything about what can be done now or in the future - certainly not with "absolutely no doubt whatsoever", as repeated in (2).

Even in the comments of this post, while making important arguments refuting claims by Brian Kalt, I believe you fall short of your own claimed scope. Your answer(3) to Mr. Kalts question would have been more in line with the scope had it been something like: "From the data we can see that pardons have been cancelled as far as XX days/months/years (your post doesn't indicate the time between pardons and cancellations, only between first and second pardons) after the pardons where issued." With your answer I feel you accept the (false) scope assumed by Mr. Kalt that you have otherwise tried to refute.

Finally, I must admit that I find it a bit intellectually dishonest to accept and repeat Mr. Kalt's caveat that "there is "no clear direct case law" to "support" [his] position on revocation of pardons." without stating a similar caveat yourself. The whole situation is as interesting as it is because there is no clear direct case law to support either or any position. Your contribution on previous instances of (albeit untried) revocations is very important and shouldn't be distracted by these unsubstantiated claims or appearances of intellectual dishonesty.

An interested reader

(1)There is absolutely no doubt whatsoever, in my mind, that he can - "can" here means, he can do it and withstand a legal challenge.

(2)n a recent post, here, we said we had "absolutely no doubt whatsoever" that President Bush could cancel the pardon of Isaac Robert Toussie.

(3)Do I think "there is a point at which a pardon is a pardon and cannot be cancelled?" No. My knowledge of clear, direct case law and history tells me otherwise. Do we "agree that there is a point at which it becomes effective?" Probably not, but I don't really have the strong sense that that matters a great deal.

P.S. Ruckman, Jr. said...

KALLISTI:First, thanks for the kind words.

You are correct to assert that my sense that Bush can revoke the Toussie pardon is based on a legal justification and accompanied by a high level of certainty. What you are failing to recognize is that 1) I have not discussed this justification in any of these posts and 2) it is not a justification based on interpretation of separate opinions without direct relevence to the situation we have been discussing. In that sense, my answer to the third item you listed is fine. It is everything that I wanted to be. And it cannot be improved upon.

The justification for revocation I have in mind has nothing whatsoever to do with this delivery/acceptance business - which has never much interested me. I think the President is foolish for pursuing that line of argumentation. I think careful readers of my blog can pick up on that.


Seneca Doane said...

Prof. Rickman,

I'm enjoying your blog immensely. I can only guess at the satisfaction at having fleshed out a field so thoroughly and then finding your work burst into public awareness like this. I'll urge my library to order your book.

As a current attorney and former Poli Sci professor, I think I have a sense of both where you and Brian Kalt are coming from. Legal precedents tell an important story, but not always the whole story: precedents often get bent, broken, or sublimate into the air over decades. The wonder I find here is the existence of precedents that I (and I expect other lawyers with no special expertise in this topic) exist, and the joy is that someone appears to have systematically researched them.

At the same time, I share Mr. Kalt's sense that his question of whether "there is a point at which a pardon is a pardon and cannot be cancelled?" is quite important. That is how we lawyers understand phenomena: by torture-testing them until they break.

I can think of one circumstance where the ability to cancel or retract a pardon could be quite important, though it's one that the DOJ guidelines would preempt: a pardon granted to someone currently in prison. My understanding is that a pardon necessarily implies a commutation if one is incarcerated. (Perhaps you'll correct me, but I can't imagine how it could be otherwise.) A pardoned prisoner would, presumably, be removed from incarceration. A cancelled pardon would, as I understand your view, prevent the removal of the prisoner from incarceration. But would this mean that a prisoner who had already been removed from incarcertaion would be returned to incarceration upon the retraction of the pardon? It is hard to imagine that that would be so. (Do you know of any precedents?)

You may argue that what has been granted in such a case is both a commutation and a pardon. If so, I could imagine that perhaps a pardon is entirely without legal effect. In that event, I'd love to see a post at some point (or just a URL link, if you've already written one) on what effects the pardon power actually has.

I thought, for example, that being pardoned might allow Scooter Libby to regain his law license. If Bush were to gtant him a pardon, could Obama retract it? (Another way to ask the question is whether, in your view, the pardon power is personal or institutional. If pardons can't be retracted, it shouldn't matter. But if they can, it does.

You may (or may not) find this discussion on Daily Kos of the Toussie pardon (and Berenson's role) of interest: (You'd probably enjoy the first part more than the focus on Berenson's political history, but who knows?)

One commenter asked what the effect would be if a pardon were later found to have induced the pardon through misrepresentation or fraud, even decades later. Am I right that you would have no doubt that it would then be liable to cancellation?

P.S. Ruckman, Jr. said...

EDITOR: Seneca Doanne, thank you for your kind words. I am no doubt pleased to see these topics get the attention they have long deserved.

In older warrants (late 1700s and 1800s), the words pardon and commutation were used as synonyms. Sometimes both words appeared in the same warrant. I think the delivery/acceptance theory is handy for the scenario where someone incarcerated. But it is not without complications. A different court could have held the DePuys should have been released because the Marshal did not deliver the pardons, as was his job. He put them in a desk drawer for a while instead!

I am familiar with sitatuations where there were attempts by incarcerated person to reject commutations of sentence. But, so far as I know, the courts have not allowed that. There is no "right" to an execution, or to extended prison care. I am not aware of a situation where someone was re-imprisoned, unless they vioated conditions attached to a commutation.

You impression in the last paragraph is correct, in a preliminary sense. See my post here:


Brian Kalt said...

First, and probably most importantly, I'm sorry for writing in a way that came across as belittling. My "to be sure" line was meant as a genuine concession, not belittling at all. I am sure that if this case ever gets to the Supreme Court, your list of previously revoked pardons will be heavy relied upon by one side—the dissent, I'd hope, but maybe not.

Respectfully, you are wrong when you write that, "Every news organization in America called the revocation 'unprecedented.'" In my original post, I cited an MSNBC article that called revocation "very rare," and a CNN article that said, "A Bush administration official noted it is rare for a pardon to be reversed." Not unprecedented. I certainly never made the claim that it was unprecedented, because I had no idea. When I read those stories, I assumed that there was precedent, but that it was limited and potentially distinguishable. As you rightly point out, your contribution was indeed very valuable to those of us who are interested in the issue, and I hope that my registering an opinion that differs from yours on the ultimate legal merits doesn't cloud that fact.

And the legal merits are, to me, the issue here. You dismiss the notion that one might try to "distinguish and qualify" the examples you have produced, but that is what Toussie's lawyers will do if they litigate this, and what the judges and justices will wrestle with as well. Not that I'd expect this to be the case, but let's assume hypothetically that none of the revoked pardons ever contained "I hereby pardon So-and-So" language, signed by the president. Toussie's did. So in that hypothetical situation, the distinction could be very significant, the long history of revocations notwithstanding.

I find it remarkable that you don't think there is any point at which a pardon becomes irrevocable. You really think that George W. Bush can revoke Marc Rich's pardon in a few weeks, on its eight-year anniversary? And you say that there is "clear, direct case law and history" that tells you so? I find that claim utterly remarkable as well. (I dispute your reading of Stetler's Case, by the way.)

You also say that there is no particular point at which a pardon becomes effective, but that it doesn't matter a great deal in any case. But on this point, I think that the Court would be 9-0 against you. At some point, it is a pardon (even aside from the revocability question). Before that point, it isn't. At some point, a person can go into court with that piece of paper and say, "legally, I do not suffer the disabilities associated with my conviction," or some such, and the court will say "that is correct."

At some point. Where that point is, I think, is the issue here. You do not think so, I know. In another comment above, you wrote, "The justification for revocation I have in mind has nothing whatsoever to do with this delivery/acceptance business - which has never much interested me. I think the President is foolish for pursuing that line of argumentation." But if a court decides the revocation question, and if those are the grounds on which the White House defends the revocation in court, then "this delivery/acceptance business" is a question that the court will answer. It will matter a lot.

The twin bottom lines in the Toussie case, in court, will be a question of law and a question of fact. The question of law will be "how far along in the process does a pardon become irrevocable?", and the question of fact will be "how far along in this process had the Toussie pardon gotten?"

I cannot imagine the Court saying that a pardon is revocable after delivery—in fact, if the Court or any lower court so holds, I'll buy you a steak dinner. And I think the reporting on Toussie may have missed the fact that in some sense, at least, his pardon had been delivered and accepted

Further, I would hope that, given the case law, the Court says that an unconditional pardon is irrevocable upon execution, and that the master warrant had been executed. If Toussie litigates, then we'll see.

On a final note, I would like to defend my consideration of the case law. You said that I "seem to have bought into a net interpretation of Court opinions which do not address this issue." Of course I do. If there were any court cases that addressed the issue, I'd be grading exams right now instead of writing about this. That is not to say that the Court doesn't reverse itself on these questions, as the Biddle case did to the Burdick case—at least partially—on the question of whether a pardon can be rejected by its would-be recipient. The best we and the courts can do is to look at what cases are out there on related issues, and to distinguish them or analogize to them as best we can.

Since you conclude by writing, "Instead of saying 'pardons cannot be revoked' (which sounds snappy, I admit), you should take more care to say, 'I don't think pardons should be revoked any more given my interpretation of Supreme Court opinions which do not address this issue,'" the following response occurs to me. First of all, I'd defend my statement by adding, "if it can be revoked, then it isn't a pardon." Semantics, perhaps, but I'll stand behind them on this one. If I have to hedge it, I'll hedge it this way: "I don't think pardons can be revoked legally, even if presidents have purported to do so before."


Brian Kalt

P.S. Ruckman, Jr. said...

EDITOR:Prof. Kalt, you may indeed find it "remarkable" that I don't think "there is any point at which a pardon becomes irrevocable," but you do me a great disservice to my years of research, writing and publication (and my imagination!) to limit my argument to George Bush possibly revoking the pardon of Marc Rich.

About a dozen other examples popped in my head, but not Rich? For example, it seems to me that Taft could have seriously considered revocation of his pardon of Charles Morse, given evidence that developed which suggested it was obtained by both fraud and bribery.

I cannot understand how you can "dispute" my "reading" of Stetler's Case when I have not actually shared my reading of it. At best, I have said it informs my thinking as a prelimary matter.

I do not say there is no particular point at which a pardon becomes effective. I simply said that you and I would probably disagree as to where that particular point might be. And I have tried to be clear in expressing my view that, if the president insists on defending his revocation on the basis of an argument which searches for such a point, he is not wise.


Brian Kalt said...

For the record, I think that the question of pardons obtained through corruption or deception present the only test of the revocation question that the courts might struggle with. That is, I cannot imagine a court upholding the revocation of a pardon that the revoking president just thought had been a bad idea. But I would also expect the court to lean very heavily against revocation, in favor of the notion that the corrupt pardon was valid, but the corruption used to obtain it was a crime. (That crime would need to be pardoned separately, which pardon would presumably be another crime, etc.) Admittedly, this presents a problem in the case where the penalty for the bribery or fraud is much lower than the penalty for the crime that was pardoned, but the president might face penalties too, like prosecution and impeachment.

To clarify what I meant about Stetler's case (sorry), you posted on Wednesday that is was potentially relevant to the Toussie case. Perhaps I was over-reading your point. I think that it will certainly be cited in any litigation over the Toussie pardon, but as I argued just above, I think that the Court would take the case not to say that fraud warrants revocability, but instead to say that if the pardon specifies a particular crime then it pardons only that particular crime. Unless the Court agreed with the judge in Stetler anyway (in which case they wouldn't need the case), I think that they would be wary of taking the broad reading of the case when such narrower grounds existed.

On your final point, I apologize for misconstruing your statement. I'd love to hear what your take is on the question: at what point do you think a pardon becomes effective?

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