Monday, December 29, 2008

Talking Points Memo: Clarification, Invitation

Over at Talking Points Memo, Josh Marshall understands (incorrectly) that we "argue" President Bush can revoke Isaac Toussie's pardon on the basis of in re De Puy (1869). We make no such argument. We have simply noted that, in the past, signed individual clemency warrants, featuring both full and unconditional pardons and commutations of sentence, have been revoked/voided/cancelled. And, to the best of our knowledge, we have produced a list of examples, unlike anyone else anywhere (including the administration for heaven's sake!). The DePuy brothers are merely two data points that just happened to be featured in federal court litigation. While we do think the President could defend his behavior, we do not think it could be done on the basis of the DePuy case.

The dozen-plus examples we have brought to light - after only casual research on this particular issue and careful qualification - may very well be disheartening to some. But they cannot (or should not) be lightly dismissed as mere "argument." Furthermore, given what we have learned from about 15 years of researching pardons, we are supremely confident, without looking an inch further, that there are additional examples some of which could only be revealed - if at all - by thousands of FOIA requests of individual pardon applications. Put another way: if you think discovering a cancelled clemency warrant is an easy thing, then quit your full time job for month, go searching for one and see what you come up with.

But Marshall also draws attention to an exchange between Rep. Hostettler (R) and former U.S. Pardon Attorney, Margaret Colgate Love in 2001 congressional hearings. Love said:
No, once the pardon warrant is signed, that is the public act that accomplishes the clemency action. I believe that Supreme Court case law has made it pretty clear that a pardon is a public act, and so all that business about the deeds and delivery, I think, has pretty much has been overtaken by the Biddle case; that it is a public act and once a warrant is signed ...
Of course, all of the examples we have noted (in previous posts) have involved signed warrants. But, for some, the examples are "too old," something like "ancient history," the residue of an antique roadshow long rendered obsolete by more "modern" precedent. Yes. Yes. We understand. It is part of an "argument." So, let's let the argument meet more data.

Here and here are two images of a clemency warrant. Note that is it dated December 20, 1972. Note also that it grants a "full and unconditional pardon" (you know, just like what Mr. Toussie got). Not also that this is an individual warrant (not one of those grossly impersonal "master warrant" affairs like Toussie's name is mentioned on). Note also that it is signed and has the presidential seal affixed. Toussie doesn't even have all of that going for him! Finally note, the word VOID is scribbled all over it (not by our hand by the way).

Is this pardon valid?

"But," says the lawyer, "what is the story? What are the circumstances? What else is there to know" No. No. No. Before we switch into lawyer mode, and "argue," let's apply our clearly stated theory to the facts. The pictures are not lying. If the facts disturb the theory too much, then the intelligent thing to do would be to 1) clarify it, 2) modify it or 3) trash it. But we don't really see the need to "argue" about anything, not at this point. We are not defending the delivery/acceptance approach at all. But we do realize that our questions could be more casually dismissed if we were pushed into that "argument." Suggestion: Let's agree to develop a sound theory of pardon validation. Let's start right here, with this warrant. Save the "arguments."

Finally, from a research standpoint (lawyers looking for "arguments" can turn off their computers here), it is worth nothing that the warrant provided here does not appear in the "official" CD set of clemency warrants offered by the Department of Justice. It was obtained by a FOIA request for the individual applicant's file. Does this warrant prove that a single voided warrant ever again appeared in the thousands of thousands of application files since 1972? No, it does not. But, as researchers, who have walked this walk for some time now, we are OK following both our intuition and our reason on that point too.

23 comments:

Brian Kalt said...

Prof. Ruckman,

Thank you for posting this. I hate to switch into "argue" mode, but there is something I feel compelled to press.

Why does this data point (and any others like it that are out there) get to be the starting point for a theory of pardon validation? Legally, it holds some weight, but it would hold a lot more if the voiding had been litigated and affirmed in court. But it wasn't.

I'm not saying that I know that a court would have ruled the pardon valid if it had been challenged (though I think it very well might have). I am saying that among all the data points out there, there are likely to be some contradictions, making it unlikely that any single theory of pardon validation will be borne out 100% by the record.

Legally, I am going to stick with the case law as the starting point for my theories about pardon validation. Sorry.

There isn't any case law that answers the Toussie question one way or another, but hopefully there will be soon!

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

EDITOR: Prof. Kalt, Fair enough. Stick with the case law as the starting point for your theories about pardon validation. Is this pardon valid? Why? Or why not? Best,

Melidie said...

Professor Ruckman,

I've really appreciated the information you've provided on this blog, and you win the prize as the pardon guru. :)
I'm hoping you can help me with a question.

The procedure for petitioning for pardon is outlined in the code of federal regulations, but it's known that Toussie did not follow that procedure. At least two individuals also bypassed the outlined procedure and were granted pardons under President Clinton.

Is this a recent phenomenon, or do you know of other cases in which the petitioner avoided the standard procedure? I understand that the president himself has the broad power to pardon whomever he chooses, but I can't help but question if the petitioner has the broad power to avoid the regulated procedure so long as he or she has the means to access the president directly. That seems like a loophole that offers an unfair advantage to a choice few people with direct access.

Brian Kalt said...

I would argue that this pardon was valid despite its purported revocation, such that if Harry Golden had litigated it, he should have won.

This is for the reasons that I and others have posited during this discussion: the president has the power to pardon but not to unpardon; acceptance is not required; etc.

All of that is assuming that the pardon would have been valid before the revocation, though. I don't know enough about the circumstances. For instance, I am intrigued by the delegation of authority to the AG here. While I can imagine such delegation leading to valid pardons, I can imagine it leading to fatally flawed ones too.

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

Melidie: You are correct to note that there are official rules and guidelines for clemency applications. You are also correct to note that these rules and guidelines in no way bind or limit the power of the president. If anything, the rules and guidelines are there to provide limiations on the officials that administer the process and to impose a sense of order and rationality (insert applause for Max Weber).

That all being said, you are also correct to note that some individuals have found ways to circumvent the rules and regulations, usually as the result of a high level of access. Some also suspect this path is more likely to be taken at the end of the term. How often it has been taken in the past is not known, but it is certainly the kind of thing that SHOULD be known. The data on such should be public.

The solution, as I have suggested elsewhere is for presidents to grant more pardons and grant them more frequently (as opposed to letting applications pile up by the thousands). This would provide applicants with something like a semblance of hope that they have a fair (or at least a snowball's) chance and discourage the notion that you have to cheat in order to win. Or, so I (and others) say. Best,

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

EDITOR:Prof. Kalt,

Thank you for this great start. Who knows, maybe with a few exchanges we can work this all out and, when the time comes, the federal courts can simply cite this comment section. You get nominated to the Court 15 years from now (if you are still in the 45-65 age range) and I get to keep being the undisputed star of the far southeast corner of the Building One (second floor) at the community college!

A further clarification on why this pardon appears valid: Is it because the warrant appears to be signed at the request of the president? or is it because the president appears to have asked for the warrant to be drawn up and signed? I mean, these are critical questions too, right?

Best,

Brian Kalt said...

I think there needs to be some sort of definitive indicium of presidential approval. Whether a particular indicium is convincing enough would have to be settled in court when and if push comes to shove. For me, someone signing on the president's behalf is very problematic.

And I humbly accept your nomination to the Court in 2023.

Soronel Haetir said...

PS Ruckman,

A question I have comparing the current pardon warrant to the 1972 warrant, and even the warrants you mentioned issued by Reagan. Were the entered into the Federal Register the way that the master warrant apparently was in this case? If that act was suffecient for Ford's pardon of Nixon and for Bush Sr in the other I do not see how that would not hold here. A document could be signed, sealed and then torn up, but once it leaves the President's hands and becomes part of the official records of the acts of the United States government I no longer see that as being an option. Perhaps this is just one price to the ever increasing size of government, there are more areas to effect, but those effects come into play much faster than they might have in the past.



In regards to the 1830s opinion holding that a pardon is a private deed requiring possession in order to prove, would that not be a function of the times? Were any government records kept in a publicly accesible and reprudcable manner the way they are now? I see a vast difference between anyone being able to look up something in the Federal Register and other official publications and the earlier practice of having to look up even court decisions in private publications.

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

EDITOR:Prof. Kalt,

I agree, very much, that signing on behalf of the president is very problematic. If I remember correctly, in the Early Republic, the Secretary of State would often sign individual warrants. I think the Attorney General started signing them around the Nixon administration. Then signing was then transferred (for the most part) to the Associate Attorney General, the Deputy Attorney General and then, in the Clinton administration, to the Pardon Attorney.

But this at least opens up the possibility that the person signing the individual warrant might NOT be acting "by the direction of the President." In which case, you and I would agree such the pardon is not valid, and can be voided/cancelled/revoked whatever language you like. Correct?

Best,

Brian Kalt said...

Forgive me for verging into legalese, but what I would say in such a case is not that the pardon is voidable but that it is void. That is, it never was a pardon in the first place.

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

EDITOR:Prof. Kalt,

The social scientist in me fears an unfalsifiable hypothesis lurking. But, I am left wondering, was there some other concern you had about someone signing on the president's behalf?

Best,

Brian Kalt said...

I see two problems with someone doing it on the president's behalf.

The first is that if it involves much of an exercise of discretion on the part of the subordinate, it is potentially inconsistent with the notion of the unitary executive, since the pardon power is given to the president and the president alone. There is no problem with the president following the recommendations of the OPA, but it sure makes things constitutionally cleaner if the signature is the president's.

The second, which is more relevant to the previous discussion, is that the president might not actually have authorized it. It represents an addition level of proof required to establish the validity of the pardon.

On the void vs. voidable point, you are right to note there is a certain circularity there. But I'm not saying that a pardon is irrevocable if I like it, and it is not even a pardon if I don't. I'm saying that if the minimum requirements for validity (whatever those might be) aren't there, then it isn't a pardon, and declaring it so is very different from "revoking" it.

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

EDITOR: Prof. Kalt,

I am not altogether positive but my sense is that the DOJ framework for processing pardons has been challenged in the federal courts and has been upheld. Seems I remember someone complaining that the Pardon Attorney was rejeting their applications, but they had a right to the eyes of the president himself - since it was a presidential power. At any rate, I do not see the Court declaring the majority of individual pardons granted over the last 30-40 years because of signatures on warrants.

Indeed, the nifty thing that dawned on me today was that - maybe - Toussie could argue the master warrant is a superior document, not simply because it is signed first, but because, in many instances, it is the only thing the President actually signs himself. This assumes Bush is following in the steps of previous presidents (Ashamed to say I don't actually know, for certain. Haven't seen one of his individual warrants)

But let's focus here, where you wrote: "I'm saying that if the minimum requirements for validity (whatever those might be) aren't there, then it isn't a pardon..."

I guess what we can draw from this initial glance, at this particular warrant is that we both agree a valid pardon - at the very minimum - clearly represents the will / intent of the executive (not an administrator). Correct?

best,

Brian Kalt said...

Agreed. The president can rely on the administrators for advice, but the final call should be his if we want to avoid potential constitutional problems.

On the challenge to the process that you mention, the Pardon Clause gives the president the power to pardon, but does not give him a duty to do anything. To the extent that a person has the right to submit a petition for a pardon, that comes from the First Amendment, not the Pardon Clause.

I doubt that anybody has the right to the eyes of the president himself, simply because that would be infeasible. Reviewing these petitions is a full-time job for multiple lawyers in the OPA, after all.

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

EDITOR:Prof. Kalt,

I think we would also agree that the intent of the president that is a feature of a valid pardon is, in alos some sense, final?

I mean, if the AG and Nixon discussed the Golden pardon, and the AG went ahead and drew up the warrant midstream, before Nixon made any final decision, then the warrant would be void for that fact alone, right?

best,

Brian Kalt said...

Yes, some combination of finality and definitiveness.

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

EDITOR:Prof. Kalt,

Don't want to jump too soon here, but ... Bush crosses out Toussie's name on the master warrant. He doesn't have to void an individual warrant, because the process has not gone that far (no individual warrant has been drawn up). Bush then says, "The inclusion of this name on the master warrant does not represent my intent or final say in this matter." Where are we?

best,

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

EDITOR:Prof. Kalt,

What is this taking your case to ABC News stuff?

http://abcnews.go.com/TheLaw/BushLegacy/Story?id=6551222&page=1

I see how it is now :-)

best,

Brian Kalt said...

It seems to me that signing and executing and announcing the master warrant is a final and definitive action. Crossing out part of it afterward is no more valid than if he tried to un-sign a piece of legislation. His ability to physically cross stuff out doesn't establish that the initial action wasn't final, it just means that he has a working pen.

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

EDITOR:Prof. Kalt,

First, I am pretty nervous making any analogy between a pardon and legislation, which can be vetoed ... of course, amended!

You called the "signing and executing and announcing" of the master warrant "a final and definitive action," but that is really three different actions, is it not?

Best,

Brian Kalt said...

It is three separate actions, but all three are required, so...

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

EDITOR:Prof. Kalt,

Fair enough. Didn't want to read in too much, or too little. So, in your view, a valid pardon represents the will of the executive, has the form of a final decision (because it is signed), is executed and announced. Correct?

What is "executed" by the way? Who does that?

best,

Brian Kalt said...

By "execute" I just mean to formalize the document. It's what distinguishes a draft or a doodle from a valid, binding document.

I will confess that I don't have much knowledge about the specifics of the who, what, when, where, and how. From what I have observed, the president executes a document by sealing it, causing it to be sealed, or signing it under particular language that expresses the weight of the document ("By the authority vested in me..." or "IN WITNESS WHEREOF, I have hereunto set my hand..."). But I really have no idea.

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