Friday, December 26, 2008

Let's Get the Basic Facts Straight (Apologies to Jerome Frank)

In a recent Times article, the White House was reported to be taking the position that Mr. Isaac Robert Toussie was not formally, or "officially," notified of his pardon. It occurred to us to wait a couple of years to find out exactly what that language means, but we preferred not to wait on the federal judiciary, or a reporter to ask Dana about it. This, however, is what happened:

1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”

2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.

3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.

4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.

5) There is no issue about whether Toussie accepted the pardon - he had asked for it and it was granted without conditions.

It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they "will be" pardoned "as soon as they get the individual warrant" (which may take weeks to arrive). The OPA always tell them they "have been" pardoned. No contingencies.


Mitchell J. Freedman said...

Outstanding post. I think that if we applied basic contract law, the request for a pardon is an offer and the act of pardoning, via informing the requesting party and then announcing it with instructions to the person(s) charged with executing it is an acceptance.

There is no need for a second acceptance by the requesting party.

Under this analysis, as applied to these particular circumstances of an unconditional pardon, there is a strong argument to be made that Toussie can enforce the pardon and that Bush could no longer revoke the pardon.

I will also say I originally thought the president could revoke the pardon before the execution, and further, that I would like to see him be able to revoke the pardon in this instance. However, the argument against revocation in this instance may be getting stronger.

Frank Wilhoit said...

This blog is admittedly specialized. Its specialty is an intriguing one, but it leads to a temptation to "buy into the frame", which is always a mistake.

We are so far out in the territory of political theater that nothing is about what it seems to be about. The debate about X is never about X. The debate about the debate about X is never about the debate about X; and so ad infinitum.

In this case, the debate about Mr. Toussie is axiomatically about Mr. Toussie; the debate about Mr. Toussie's pardon cannot possibly be about Mr. Toussie's pardon; the debate about the revocation of Mr Toussie's pardon is about anything other than the revocation of Mr. Toussie's pardon; and the debate about the precise boundaries of the Presidential pardon power, while self-recommending, may as well be acknowledged as a piece of pure historical research, without even attempting to apply it to the immediate context, in respect to which it represents at least a four-deep nesting of buying into the frame.

Instead, let me point out the most (? only) puzzling aspect of the present situation, which serve as an approach to figuring out what is really going on. That is that Mr. Bush's action in this case is completely uncharacteristic. When has he ever reversed himself before, on any matter, grave or trivial, after an lapse of time, in public or in private? This is the thread to pull. Regrettably from your standpoint, it has nothing to do with your declared area of interest.

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

EDITOR: Frank, I just don't know how to say it any better than this:, best,

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