Isaac Toussie is a real estate swindler who emblemizes subprime predatory lending. He was pardoned this week, after which his father's apparently first-ever political donations, made to Republicans prior and subsequent to his application, were revealed.
In the first known case of pardonus interruptus, the Bush Administration retracted the pardon like it had touched a live wire. Toussie's attorney Bradford Berenson, a partner at Sidley Austin Brown and Wood, gave a perfunctory "we still hope for a pardon" statement, and all involved hastened away.
Why this abrupt reaction? Some of us have speculated that this pardon may have undercut expected confirmation hearing attacks on Attorney General-designate Eric Holder over Clinton era pardons.
But this may be a much bigger story -- one having nothing to do with Holder and everything to do with Berenson, a man who was not only well-placed to know where the bodies were buried in the Bush Administration, but to bury them himself.
Berenson's fingerprints are found near the Abramoff scandal, the Hamdan case, and Gonzales's U.S. Attorney firings. But it may take Isaac Toussie to, as John McCain would say, make him famous.
This small and strange story matters because it offers an entry point not only for Congressional investigations, but for a special investigative counsel once the Obama Adminsitration begins.
Here's the problem for Mr. Berenson: even if the pardon of Isaac Toussie is ultimately undone, any machinations that were undertaken to arrange for such a pardon cannot be. (Attempting a crime is still a crime, if such behavior would be criminal. A pickpocket whose fingers enter an empty pocket still commits larceny.) I hasten to add that the conduct of Mr. Berenson and his collagues may have been entirely proper throughout this entire process -- but circumstances amply afford suspicion and thus investigation.
The Toussie Pardon and De-Pardon
Let's start by reviewing what we know about the pardon itself:
Isaac's father Robert Toussie is one of the largest landowners on Long Island, He himself was the subject of a real estate corruption investigation and is a co-defendant in the class action suit involving his and his son's predatory lending practices. After never before having made a recorded federal political contribution, he suddenly sprang into action as a Republican political donor in 2008.
He gave $30,800 to the McCain Victory Committee in March, yielding $2300 to McCain and $28,500 to the Republican National Committee. On October 15, he made $2300 contributions to each of the two most competitive Republican Senate campaigns (not counting Ted Stevens): Norm Coleman and Gordon Smith. On October 30, he contributed $2300 to up-and-coming lean-and-hungry Republican House leader Eric Cantor. The contribution to Cantor presumably ended up as part of his final $43,888 contribution to the Republican Congressional Campaign Committee a week later.
These were well-aimed contributions. It is unlikely that Robert Toussie was political geek enough to choose them by himself. So, what Republican smart cookie told him where to send his money?
On August 7, Isaac Toussie's petition for clemency arrived. Less than twenty weeks later, it was granted. This is, to put it mildly, lightning speed for a pardon.
At some point in this process (if not before this process began) Isaac Toussie began to be represented by Bush White House insider Bradford Berenson, one of the elite original eight deputies to Bush's first White House Counsel, Alberto Gonzales, and a man who would certainly be expected to have intimate continuing contacts with that office. He would know, or could readily find out what he needed to know, about the pardon process. Indeed, he would seem to be a great person to hire if one wanted to secure a pardon, and to the extent that his inside efforts were within the law, no one can look askance at them. Yet the way the pardon proceeded raises many questions.
Notably, the pardon did not go through normal channels, which include review by the United States pardon attorney, Ronald L. Rodgers, in the Department of Justice. The decision was made by White House Counsel Fred Fielding (himself as connected a Republican attorney as they come), although it is not clear to what extent this decision was a departure from his normal responsibilities or procedures.
The decision to apply directly to the White House rather than to the Department of Justice, is unusual but not unprecedented (and certainly bears watching as more such pardons trickle out):
People involved in the pardon process say it has become more common in recent months for those seeking clemency to go directly to the White House, as Mr. Toussie’s lawyer, Bradford Berenson, did, rather than go through the Justice Department.
It is still notable, however. For one thing, it allowed circumvention of Justice Department guidelines that would have rendered Isaac Toussie ineligible for a pardon, because "applicants are expected to pay their debts to society in full, express remorse and wait five years before submitting their requests." Toussie, notably, has not made restitution to his victims, possibly in part because relevant records were reportedly lost in the destruction of the World Trade Center.
It is also a very bad idea because it allows political considerations, including whether one has contributed to one's party, into account. And that leads to apparent mistakes like this:
Officials said Fred F. Fielding, the White House counsel, was unaware in reviewing the petition that Mr. Toussie’s father had recently donated $28,500 to the Republican National Committee and $2,300 to the presidential campaign of Senator John McCain of Arizona.
This circumvention of the Justice Department was prompted, presumably, by attorney Bradford Berenson. Taking Fielding at his word (for now) that money was not involved, the reason he approved the pardon may well have been his knowledge of Berenson's own sterling reputation within Republican circles and tenure as one of the original eight Bush Administration deputies in the Office of White House Counsel that Fielding now heads. (Certainly, the decision is otherwise pretty politically tone deaf, especially emanating from a notoriously pardon-averse President.)
So that leads back to the question of those contributions. Did Berenson know about them before (or after) the fact? Were they suggested by him, by someone at his law firm, or by another political associate? Were they part of a quid pro quo either to obtain a pardon or, perhaps just as effective, to secure Berenson's powerful sponsorship, given his prominent involvement in the White House Counsel's office?
To summarize:
- Was money donated to these campaigns a quid pro quo for a pardon?
- Whose initiative was it for Robert Toussie to suddenly and finally become a big money Republican donor?
- Who selected these Congressional recipients, including two tight Senate races and one huge House Republican rainmaker?
- When and at whose suggestion did either Toussie contact Berenson?
- Did Robert Toussie's donations somehow "qualify" Isaac Toussie for representation by a heavy hitter like Bradford Berenson in this matter, either with or without Berenson's own knowledge?
- If Isaac Toussie was only able to obtain this extraordinary representation due to his father's contributions, did such an arrangement violate campaign financing laws? For example, if he received a reduction in standard fees after making required a contribution to acquire someone's service, it is as if the person charging the fees is making the contribution. (Note that neither Berenson ($1000) nor Fielding ($500) maxed out to McCain or contributed to these other candidates.) Beyond that, and this is surmise, I would think that saying "I will help you to find the lawyer who can get you want you want if and only if you make this contribution" would seem likely to violate such laws, at least if the one giving assistance is maxed out.
- What was Fred Fielding's normal role in making these sorts of decisions? Did he depart from that role here? Was the petition reviewed by a subordinate and delivered to him with a recommendation? Who, if so, and with what connection to Mr. Toussie or Mr. Berenson?
- What other pardons did Mr. Fielding approve? Are there certain recognized attorney names whose clients would presumptively be considered likely candidates for pardons by Mr. Fielding? Is Mr. Berenson such a person?
What do we know about Bradford Berenson?
This raises a question: Who is Bradford Berenson? That turns out to be an interesting story.
Bradford Berenson was a judicial clerk for ultraconservative Judge Laurence Silberman of the District of Columbia Court of Appeals in 1991-1992, He then clerked for Justice Anthony Kennedy during the 1992-1993 term.
In 2001, he became
one of the original eight associate counsels during Alberto Gonzales's tenure as White House counsel ... a tightknit group of Washington-based former clerks to Supreme Court or appellate judges, all of whom had worked on at least one of three touchstones of the conservative movement: the Whitewater and Monica S. Lewinsky inquiries of former president Bill Clinton, the Bush-Cheney election campaign, and the Florida vote-counting dispute.
This group of associate counsels exerted a great deal of control in the creation of the Patriot Bill, Gonzales' determinations regarding the legal statures of "detainees" captured in the War on Terrorism, the validity of the Geneva Conventions, and a new less stringent legal definition of torture.
As you may suppose, he did not distinguish himself as a wonderful humanitarian in that position. In a diary two years ago, scorponic wrote that Berenson:
testified to the Senate Judiciary Committee yesterday. You can read his full statement here to get a flavor of the type of animal that inhabits the putrid moral and intellectual swamp that is the Bush administration.
I just want to highlight one little snippet, however.
We thus found ourselves after [the recent Supreme Court decision in] Rasul with hundreds of our nation's most vicious enemies suing our military and civilian commanders in federal court seeking writs of habeas corpus. Indeed, now that Khalid Sheikh Mohammed, the al Qaeda mastermind of 9/11, has been transferred to Guantanamo, it may not be long before he, too, can continue his aggression against the United States, this time through our own court system.
Lawyers of America, you have been warned.
After leaving the White House Counsel's office, Berenson supported some truly awful policies. The best explication of Bradford Berensoniana on this site thus far comes (unsurprisingly) from Valtin, who traced his links as a founder of the "Citizens for a Common Defense," which filed an amicus brief supporting the government's "anti-habeas" position in Hamdan. More detail may be found in this discussion thread and the links therein.
More recently, Berenson has (putting aside the big surprise I'm saving for the end) made somewhat of a business of representing people who know a lot about Republican scandals.
He was the attorney for D. Kyle Sampson, former Chief of Staff to Attorney General Gonzales, during Congressional investigation of the firing of U.S Attorneys. It was during that Gonzales publicly blamed Sampson "for his 'mistake' in not sharing 'information he had' with those testifying before Congress. Sampson, once thought to be "the next Karl Rove", resigned under pressure from Congress after his testimony.
Berenson's representation of Sampson became of greater interest in the blogosphere when he released two similar but critically different explanations for this resignation on successive days. Significantly, the latter (less forthrightly) omitted the word "political" in the following statement:
Kyle did not resign because he had misled anyone at the Justice Department or withheld information concerning the replacement of the U.S. Attorneys. He resigned because, as Chief of Staff, he felt he had let the Attorney General down in failing to appreciate the need for and organize a more effective political response to the unfounded accusations of impropriety in the replacement process.
Removing the word "political" certainly helped out Gonzales, but it is unclear how it helped his actual client, Sampson, whom Gonzales was then hanging out to dry. Speculation at the time was that Berenson was deployed as much to keep Sampson in line as to represent him.
Berenson's client was before long caught in what one diarist here represented as perjury over this testimony:
Berenson's involvement in covering up Sampson's apparent perjury in his testimony over firing the U.S. Attorneys, when he said that no list of expected replacements for those USAs chosen for firing had been prepared ahead of time.
Read that diary for an interesting story that has dropped off the radar, though we cna hope Eric Holder will revive it. Sampson is now a partner at a big firm dealing with food and drug regulatory issues.
I promised you an Abramoff link, and you shall have it!
Berenson announced in May 2007 that Susan Ralston would not cooperate in the Abramoff investigation, taking the Fifth before Henry Waxman's committee while seeking immunity for "material, useful information" about "the subjects of the relationship between Jack Abramoff and his associates and White House officials, including Ms. Ralston, and the subject of the use by White House officials of political e-mail accounts at the RNC."
This is interesting, because on its face it is contrary to Republican Party interests. We would have loved Susan Ralston (look her up) to become a whistleblower in the Abramoff scandal! However, if Berenson knew that Congress would never grant Ralston immunity, the effect of his gambit would simply be to keep her silent -- which may be all that the party wanted. Again, paging Eric Holder!
I have to say, as one with a toe in legal scholarship myself, Berenson does strike me as an interesting guy: one of those conservatives who, while very very wrong, at least gives a good sense of why they believe what they do and manage to think of themselves as principled. He can surprise, also. For example, here's his quote explaining (in case anyone ever brings it up) why Bush has fewer judicial appointments than Clinton: "From Day One, President Bush made the judiciary a top priority, and he fought very hard for his nominees," said Washington attorney Bradford Berenson, who worked in the White House counsel's office in Bush's first term. "He was less willing to compromise than President Clinton. As a result, in raw numbers, he may end with somewhat fewer judges than Clinton had."
Berenson helpfully submitted to an extensive interview on a wide variety of tasks for PBS's Frontline in August 2007. (As this diary is already overlong, I'll leave the mining of this fascinating interview to others.)
I'll end my review of Berenson's history with two items that people may find more positive. First (and more briefly), Berenson was one of those testifying in February 2007 in hearings held by Senator Russ Feingold that Congress had the power to end the war in Iraq if it so chose:
Also testifying was Bradford A. Berenson, who served as Associate Counsel to the President from January 2001 to January 2003. He noted at the outset that the country is best off when the two branches of government are consulting with each other and working together. He saw three spheres of influence over war (1) legislative power; (2) executive power; and (3) shared power.
The power exclusive to the legislature is to declare war, raise arms, and regulate warfare so long as it does not interfere in the power of the executive who has sole power as commander in chief. The power as commander in chief gives exclusive power over tactics, strategy, and selecting sub-commanders.
Congressional power is over broad national policy, e.g. where we fight, who the enemy is, and how many troops can be used. If the Congress wanted to say "end hostility within six months," doing so would be in its constitutional power but the president would still have emergency powers to protect the troops in that process. He concluded "the constitutional scheme does give Congress broad authority to terminate a war."
This will hearten many people here, I know. I'm more suspicious about this. I believe that Berenson's role here may have been to tie Congress more closely to Bush war policy so that it would share the shame of it. All sides understood that even the newly Democratic Congress could not muster the votes needed to pass a revision to the 2002 Iraq War resolution, given the prospect of a filibuster.
The last good thing about Berenson's history also answers the question of why need a Special Prosecutor to look into this matter. If I mention something about him that I've left out, it may offer a clue: "J.D. Harvard '91."
That's right: he's a Friend of Barack. Specifically, he'sone of the conservative editors that Obana famously engaged while he was Editor-in-Chief of the Harvard Law Review. Here are some quotes of his:
• "Even though [Obama] was clearly a liberal, he didn't appear to the conservatives in the review to be taking sides in the tribal warfare," said Bradford A. Berenson, a former Bush administration lawyer who was an editor at the review.
• "The politics of the Harvard Law Review were incredibly petty and incredibly vicious," Berenson said. "The editors of the review were constantly at each other's throats. And Barack tended to treat those disputes with a certain air of detachment and amusement. The feeling was almost, come on kids, can't we just behave here?" (Boston Globe 1/28)
• "Whatever his politics, we felt he would give us a fair shake," said Bradford Berenson (NY Times 1/28)
• "I have worked in the Supreme Court and the White House and I never saw politics as bitter as at Harvard Law Review in the early ’90s," Mr. Berenson said. "The law school was populated by a bunch of would-be Daniel Websters harnessed to extreme political ideologies." They were so ardent that they would boo and hiss one another in class. (NY Times 1/28)
[Note: This diary had become too long to publish easily, so I had to cut some choice quotes from another set of Frontline interiews], unfortunately. Check out the interview. There's interesting stuff about Obama, even aside from Berenson himself.]
Berenson -- who had been Romney man, serving on his Advisory Committee On The Constitution And The Courts, and only belatedly a McCain supporter -- chose to defend Obama in one area at a time when it really mattered: in rebutting Sarah Palin's attacks on Obama's supposed ties to Bill Ayers:
• "I saw no evidence of a radical streak, either overt or covert, when we were together at Harvard Law School," said Bradford A. Berenson, who worked on the Harvard Law Review with Mr. Obama and who served as associate White House counsel under President Bush. Mr. Berenson, who is backing Mr. McCain, described his fellow student as "a pragmatic liberal" whose moderation frustrated others at the law review whose views were much farther to the left.
My including Berenson's history with Obama was originally going to be a joking coup de grace explaining why, given President-elect Obama's own Harvard Law Review ties to Berenson (which all reasonable people should agree are assuredly irrelevant to this matter), an independent special counsel should be the one to investigate the Toussie pardon. The deeper I got into it, the more I realized that it's no joke.
This is not at all because I think that Obama would hestitate at all to investigate his former Harvard Law Review Supreme Court Editor's actions in this matter: I am confident that he would. A greater concern is that his subordinates in the DOJ might hesitate to lower the boom on their boss's old friend, but even that is not likely. It really comes down to this: an uncharitable person might believe that Obama was somehow protecting an old friend who protected him from Sarah Palin's attacks during the campaign. Berenson, from one faction of the Republican Party, did help defuse the Republican's main line of attack on Obama from another faction of the Republican Party in the last month of the election. The person who directs an investigation of this pardon should not have the President as his or her ultimate supervisor, especially given that the investigation is of actions that circumvented the DOJ itself.
On Eric Holder's first day as Attorney General, he should announce the appointment of an independent Department of Justice special counsel to investigate precisely how the Toussie pardon came about and why it unraveled. If, of course, the investigation leads to a broader examination of Berenson contacts within the Republican party and how they may have fostered official corruption, then that Counsel must follow them where they lead. Republicans can hardly complain, given how a dry investigation of a failed real-estate deal eventually led to the impeachment of a President with the support of Berenson and people like him. If the Toussie Pardon becomes the nose under the camel's tent when it comes to investigating the crimes of the Bush years, that is the fruit of Bradford Berenson's choices, not of ours.