Can Bush un-pardon someone?

posted at 2:10 pm on January 14, 2009 by Ed Morrissey
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Earlier, I wrote about George Bush’s reluctance to issue pardons and whether he’d start making more controversial calls in his six remaining days.  George Lardner wonders whether Bush will get away with rescinding one of his few pardons.  Lardner looks at the embarrassing case of Isaac Toussie, whose pardon kicked off a firestorm of criticism and an attempt to undo it:

The most important step George W. Bush has taken with the presidential pardon power came last month, when he repudiated it.

On Dec. 23, he granted clemency to a sordid Brooklyn developer, Isaac R. Toussie, who had pleaded guilty to real estate fraud, and when details of the case came to light — Bush had acted on the recommendation of the White House counsel, without the knowledge of the Justice Department’s pardon attorney — the president washed his hands of the situation and withdrew the pardon one day after signing it.

The about-face has sparked questions about whether there was precedent for Bush’s action and whether it could stand. It’s a debate the courts, which have been weighing in on the supposedly untouchable pardon power for more than 150 years, should be happy to settle. And if judges have any regard for history, they will side with Bush.

Why?  As Lardner explains, courts have already ruled that delivery and acceptance are important parts of pardons.  In US v Burdick, the president attempted to issue a pardon in order to force a newspaper editor to testify in court.  The judge ruled that Burdick did not receive and accept the pardon, and therefore it had no force of law.  If Toussie had not yet accepted the pardon, the Bush administration argues and Lardner concurs, then the pardon had not yet been complete and could be recalled.

Perhaps.  But it’s far wiser to consider the pardon carefully in the first place.  Fred Fielding, the current White House counsel, recommended the pardon after bypassing the normal Justice review process.  That meant that Bush didn’t realize the extent of the damage Toussie incurred in his frauds and the amount of resentment still left with his victims — and prosecutors.  After the Marc Rich scandal, one would think that any White House would learn the lesson of going through proper channels, if for no other reason than political cover.

Like Lardner, I think this makes for an interesting test for court, which is where Toussie will assuredly go over the rescission.  I’d bet on Bush prevailing, and I’d also bet that Barack Obama’s administration will pursue Bush’s case to protect executive privilege in the future.

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