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I just posted about this over at ePluribus Media as well; it's well worth diarying here and expanding upon.

Bush did it.

He revoked a pardon that he'd issued earlier.

Yesterday, some other george reported that Bush was re-examining one of the pardons he'd previously issued earlier in the week, and denniswine's comment provided a link to AP's report that Bush had, indeed, revoked the pardon.

The political and legal implications are staggering.

UPDATED Below: a pardon may be unrevocable once complete, but this may present an opportunity to overturn an earlier SCOTUS ruling that determined that.

Here's an excerpt from the ePluribus Media Open Thread:

This sets a whole new precedent, and provides the incoming Obama Administration with one very potent -- and very, very dangerous -- tool: the ability to revoke any Bush pardons based on new information.  Like evidence of treason, sedition, war crimes, intentional corruption, coincidental murder, willful ignorance, dereliction of duty or wholesale negligence.

In short, just about everything that Bush might pardon his fellow Administration members for, opening the door for this nation to finally have a means to circumvent the use of pardons to enable dirty Presidents to get away with -- or help their cronies get away with -- crimes most heinous and foul.  The potential for criminals who thought to skate free with a Presidential pardon has now been tarnished and sullied, and there is new hope for change and accountability as a result.  It's also a step that should be taken lightly, if at all, lest it lead to a tug-of-war of back-and-forth Administrations slapping each other for foolish actions.

This is going to set a lot of pants on fire, not to mention initiate a large number of cranial implosions on all sides of the aisle.  Now, of significant note -- and possibly a loophole within the precedent-setting action -- is this blurb from the article:

"The counsel to the president reviewed the application and believed, based on the information known to him at the time, that it was a meritorious application," she said. Bush now believes the case should rest with the pardon attorney.

Bradford Berenson, an associate White House counsel during Bush's first term and Isaac Toussie's lawyer, said in a statement that his client remained confident the pardon attorney would grant his request.

Those paragraphs, available in both the CBS version and the original AP (via Chicago Tribune) version, give me slight pause: has the pardon been revoked, and might it be re-granted, pending further input from the pardon attorney? If the latter is the case, what impact -- if any -- does this have on the initial revocation's precedent-setting use?

We've got some lawyers in the house -- anyone want to chime in on this, or perhaps step in it with us over holiday cheer?

Does this mark an event as significant -- and dangerous -- as it initially appears, and should Dick Cheney and Scooter Libby, among others, now start worrying?

UPDATES:

  1. From LithiumCola's Comment:

    Here's the latest from the TPM updates.

    Note the late late update:

    Late Update: Or maybe not. A knowledge says there's an 1869 case (in re Du Puy) that holds that the president can take back the pardon as long as it hasn't been delivered to the grantee. A quick read of this suggests that this decision binding. That's an old legal text citing this case to argue what I've italicized in this quote: "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, and a pardon by an outgoing President may be revoked by his successor before delivery."

    Late Late Update: A reader passes on some new information suggesting that Du Puy may no longer be the operative precedent in this case and that the Toussie pardon is not revocable. But there are limits on the hours even I'm willing to keep. So this will have to wait for tomorrow -- jmm, 12/24/08, 11:22 PM.

    Others had made a similar point earlier in comments (see burrow owl's comment and PoconoPCDoctor's, too).

  2. See Halcyon's comment about whether this could be a ruse to set up a new SCOTUS decision to reinforce the earlier ruling that the Constitution does NOT grant a President the right to revoke a pardon, and my response.

Thanks for all the input and feedback, folks. :)

Originally posted to GreyHawk on Thu Dec 25, 2008 at 04:25 AM PST.

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Comment Preferences

  •  Tips, thoughts, comments...? ("Merry Xmas!") (42+ / 0-)

    Happy Holidays, one and all.

    ...did Bush just give the rest of the nation and the world the ultimate Christmas gift, or is it a dangerous Pandora's box -- too dangerous to open further, but one that the GOP wouldn't hesitate to use if it furthers their own causes?

    A corrupted government. Patriots branded as renegades. This is how we roll.

    by GreyHawk on Thu Dec 25, 2008 at 04:25:15 AM PST

  •  In order to use a tool... (2+ / 0-)
    Recommended by:
    cotterperson, GreyHawk

    Someone has to be willing and capable.
    Can you honestly see this on either Pelosi's or Reid's table, let alone both?

    St. Ronnie was an asshole.

    by manwithnoname on Thu Dec 25, 2008 at 04:39:23 AM PST

  •  Since a pardon can be declined (6+ / 0-)

    it appears to be a transaction that is not final until all the signatures are dry.

    That's how the Supreme Court read it in 1869 apparently. There is a whole body of English law and precedent on which the pardon power rests.

    Further, I wonder when and how Toussie will suffer a justiciable tort on which to make a claim?

    Fuck Warren. Fuck Obama too. P.S. Happy holidays, Kossacks!

    by Clem Yeobright on Thu Dec 25, 2008 at 04:48:26 AM PST

  •  A constitutional lawyer... (12+ / 0-)

    On the NY Times city room blog

    I am a constitutional lawyer, but as the article notes, this is an issue of first impression, so definitive answers are hard to come by. I think almost everyone would agree that a pardon, once granted, cannot be undone. But you will note that the White House press release says “the president has directed the pardon attorney not to execute and deliver a grant of clemency to Mr. Toussie.” So they obviously plan to claim that, until executed and delivered, certain formalities necessary to the pardon have not yet occurred. From this, you can gather that they fully realize that they can’t undo a pardon once granted. Mr. Tourssie, who is represented by a very vigorous law firm (Williams & Connolly), will almost certainly fight this, arguing that the pardon was final when the President announced it, and that the delivery of documents by DOJ was merely incident to a pardon already granted. I expect this will end up in a court fight, since I can’t see them reversing this reversal in light of all the new facts. The issue likely turns on whether the President’s announcement satisfies all elements necessary for the pardon. I agree wth those who say this situation is an embarrassing one that should have been avoided, since the due diligence seems questionable, at best. This was not a pardon granted his last day in office, and it is surprising the decision was made off the cuff this early, esp. if DOJ’s pardon attorney hadn’t yet weighed in.

    Interestingly, this delivery situation arguably has some factual similarities to the leading Supreme Court case ever, Marbury v. Madison. There, John Adams had appointed Mr. Marbury as a DC justice of the peace under a new court-packing law shortly before he left office - but Marbury’s commission from the President was never delivered. Jefferson then came in and did evertthing possible to block this routine delivery. The Supreme Court eventually declared that Marbury had a right to this commission, and also found that the failure to deliver it was violative of a vested legal right (but then refused to enforce it under the mandamus law that Marbury had invoked, declaring that law to be unconstitutional - and themselves the final arbiters of the law - thereby aggrandizing the Court’s power while deftly avoiding any possiblity that Jefferson would ignore this ruling of the Supreme Court). Toussie will likely similarly argue that his right “vested” the moment President Bush announced the pardon. Then again, it wasn’t Adams who stopped the delivery of his commission. And the process was much further along - Adams had not only made the appointment, but it had also been approved by the Senate; and Adams, of course, never withdrew it. Then again, pardons don’t require Senate approval. Should be an interesting issue.

    "Let us raise a standard to which the wise and the honest can repair." - George Washington

    by PoconoPCDoctor on Thu Dec 25, 2008 at 04:57:44 AM PST

  •  Pardon or Not Pardon (2+ / 0-)
    Recommended by:
    cotterperson, GreyHawk
    <div><iframe height="339" width="425" src="http://www.msnbc.msn.com/id/22425001/vp/28382450#28382450" frameborder="0" scrolling="no"></iframe></div>

    If code shows in preview but not in reply click here to watch the video

    "How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans."

    by jimstaro on Thu Dec 25, 2008 at 04:59:02 AM PST

  •  At any rate (1+ / 0-)
    Recommended by:
    GreyHawk

    there should be changes made to the pardon process. One person should not have this much power as it can easily be abused. We saw this for example with Bill Clinton's pardons (March Rich) and George W Bush's commutation/upcoming pardon  (Scooter Libby). An independent body should at least have some oversight and power.

  •  Has any court ever ruled on the constitutionality (2+ / 0-)
    Recommended by:
    cotterperson, GreyHawk

    of the kind of blanket pardon Gerry Ford issued for Tricky Dick?--

    I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon

    for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in

    during the period from January 20, 1969 through August 9,1974.

    If not, can a case be made that a pardon can only be granted for specific transgressions that the pardonee has already been convicted of (or indicted for)?

    A "no" verdict wouldn't keep Dubya from pardoning Scooter but it might prevent the sort of (mis)Administration-wide prison break ante facto we'd see otherwise come January 19 or so.

    May I bow to Necessity not/ To her hirelings (W. S. Merwin)

    by Uncle Cosmo on Thu Dec 25, 2008 at 05:23:41 AM PST

  •  Here's the latest from the TPM updates. (4+ / 0-)
    Recommended by:
    cotterperson, Shadan7, GreyHawk, red 83

    Note the late late update:

    Late Update: Or maybe not. A knowledge says there's an 1869 case (in re Du Puy) that holds that the president can take back the pardon as long as it hasn't been delivered to the grantee. A quick read of this suggests that this decision binding. That's an old legal text citing this case to argue what I've italicized in this quote: "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, and a pardon by an outgoing President may be revoked by his successor before delivery."

    Late Late Update: A reader passes on some new information suggesting that Du Puy may no longer be the operative precedent in this case and that the Toussie pardon is not revocable. But there are limits on the hours even I'm willing to keep. So this will have to wait for tomorrow -- jmm, 12/24/08, 11:22 PM.

    Space. It seems to go on and on forever. But then you get to the end and a gorilla starts throwing barrels at you. -- Fry, Futurama

    by LithiumCola on Thu Dec 25, 2008 at 05:24:35 AM PST

  •  Has anyone considered the possibility that (4+ / 0-)

    the plan is to prove in a court of law that the Constitution does NOT grant the president the right to revoke a pardon?

  •  The more interesting issue here (6+ / 0-)

    since I'm not a constitutional expert, I find the more interesting angle of this story is that they backtracked because, ahem, they didn't do their homework on the pardonee.

    More of the same from this incompetent white house.  Another pr black eye.  Heh.

    And in the unlikely story that is America, there has never been anything false - about HOPE. Barack Obama

    by thesunshinestateisdark on Thu Dec 25, 2008 at 05:28:45 AM PST

    •  Excellent point. (1+ / 0-)
      Recommended by:
      cotterperson

      Another failure of the Bush Regime, in blindingly obvious light.

      A corrupted government. Patriots branded as renegades. This is how we roll.

      by GreyHawk on Thu Dec 25, 2008 at 05:30:13 AM PST

      [ Parent ]

    •  Some Are Tired (2+ / 0-)
      Recommended by:
      cotterperson, GreyHawk

      I have a feeling anybody in the Current Regime who isn't a wide-eyed madman wingnut is exhausted and just wants to be done with it. There are those whose heart isn't in it any more.

      Shhh, tired ones. Take it slow and easy. Your Hard Work on the Dark Side is almost over, and then you can go home to your loved ones and get well.

      Joe Biden: Get up! Al Gore: Pray, and use your feet! Harriet Tubman: Keep going!

      by JG in MD on Thu Dec 25, 2008 at 06:07:53 AM PST

      [ Parent ]

    •  Absolutely, sunshinestate, that's what I see... (2+ / 0-)
      Recommended by:
      cotterperson, GreyHawk

      W sitting there, throwing back some brewskies, cramming in the pretzels, and saying to himself, well, hell, I'll just start some pardons going.   Where's that fuckin' list Dana put on my desk?"

      This beat goes on until he staggers outta there.

      These are despicable people, and they do despicable things. Mario Cuomo

      by sally lambert on Thu Dec 25, 2008 at 07:18:29 AM PST

      [ Parent ]

  •  What I find interesting about this case (5+ / 0-)

    is that scamming/skimming the government for moolah is the basic Bush M.O. So I wasn't surprised to learn of this pardon. What Toussie did is no different than Jeb's Medicaid scam, and Neil's Silverado bailout.

  •  Bush is worried about a shitty pardon? Sorry,... (4+ / 0-)
    Recommended by:
    cici414, cotterperson, GreyHawk, JG in MD

    ...but that does not wash.

    Look at all the crap the GOP has done.  The record we do have is absolutely horrible.  The political implications of a bad pardon just don't even register on the radar now.

    It sure as hell won't when Repuglicans run next year, or the year after, etc...

    This is fun 'n games with the legal system.  I think there is some shit we don't know about, and that shit is bad shit --the worst kind of shit, like people going to jail hard, party rep being mud for a generation, over and above the shit we are already pissed at them for, kind of shit!

    These clowns have not done anything without some greater purpose, and that purpose has largely been able bastardizing our process and managing expectations surrounding what a President can and cannot do.

    And about covering a lot of corrupt asses.

    So then, given this consistency, it's more of a stretch to believe this is Bush having second thoughts than it is about priority number one; namely, covering asses and preserving power and control.

    Speak or be spoken for. This is the lesson learned over the last 8 years.

    by potatohead on Thu Dec 25, 2008 at 05:50:46 AM PST

    •  ...which then begets the question of "why." (3+ / 0-)

      Why this person?

      Why this pardon?

      Why now?

      ...kinda plays into the dual-bladed thoughtsword that Halcyon tossed into the mix, about the potential for cutting a SCOTUS decision one way or the other, or for an as-yet undetermined purpose.

      A corrupted government. Patriots branded as renegades. This is how we roll.

      by GreyHawk on Thu Dec 25, 2008 at 07:05:56 AM PST

      [ Parent ]

    •  So, P-head--you don't think this is just (1+ / 0-)
      Recommended by:
      GreyHawk

      a screw-up? I'm really fascinated by this event.  Was issuing these pardons just more hard work for that wobbley brain & he just didn't pardon the "right" guy?   You say no.  Maybe you are right, as you sound much more up to snuff on the legal scheming angle.  He's just so freaking incompetent, and it's seemed to me that,since forever, each time he makes a decision, it backfires.   So one might say, well, what if he makes no decisions for himself? Then THEY are screwing up every time.  How's that possible?  Or, if you are correct, they never really screw up, they just plan ahead!    

      These are despicable people, and they do despicable things. Mario Cuomo

      by sally lambert on Thu Dec 25, 2008 at 07:30:35 AM PST

      [ Parent ]

      •  I think perhaps the GOP realized, in light of an (0+ / 0-)

        article excoriating that particular pardon, that it would hurt them far more than the Marc Rich thing did the Clintons, so this was the lesser of two weevils.

        A corrupted government. Patriots branded as renegades. This is how we roll.

        by GreyHawk on Thu Dec 25, 2008 at 07:44:28 AM PST

        [ Parent ]

      •  I do not think it's a screw up. (1+ / 0-)
        Recommended by:
        GreyHawk
        Where we see incompetence, I see blind adherence to dogma, a rigid way of governing, and a belief that it doesn't work because of...

        [insert anything here]

        These guys believe they are entitled some how, that greed will run the world correctly, that if they do it it is legal, and that the lesser among us exist only at the pleasure of the greater.

        Power exists to be leveraged too.

        It is the disconnect between their world view and reality that manifests as incompetence.  We only see it because they are checked --and that's an incomplete and broken check, not even a well balanced machine!

        This is not to say they are perfect.  People crack, exercise their greed at the wrong time, mistakes are made.  They will spin these, try to hide them, attack others on them, gain power, and other things.

        But this guy, right now makes no sense.  Somebody owed somebody something.  The risk was calculated, options considered and we are now seeing it play out.

        Bet it was done this way:

        So the guy gets his pardon.  There exists a chance that he will go un-noticed.  If so, great.  Debt paid, whatever!

        He does get noticed, but the political cost is fairly low.  Pay the spin doctors something, and move on.

        It's a mess!  So, pivot on that, make it all about another issue, and make an example of those and the process that thwarts what is otherwise just the business of the entitled.  And make no mistake, they see entitlement to do that, make those calls, do those things because they have the power, and either we give it to them, and shut up about it, or they take it.

        Speak or be spoken for. This is the lesson learned over the last 8 years.

        by potatohead on Thu Dec 25, 2008 at 10:58:53 AM PST

        [ Parent ]

  •  Technically Obama doesn't need that (1+ / 0-)
    Recommended by:
    GreyHawk

    If we're playing by Bush's rules, Obama just has to declare whoever he doesn't like an "enemy combatant"/"terrorist" and they can disappear somewhere overseas.

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