Bush - The Un-pardoner.

We note the story that came out today, hot on the heels of Bush's pardon announcements of yesterday, that he has decided to revoke the pardon of Mr. Toussie, a convicted real-estate scammer from Long Island.  It came out in today's NYC papers that Toussie was being sued by literally hundreds of people who'd been defrauded by him.  They also reported that he'd only been convicted in 2003 and got a very light sentence - 5 months and no restitution - for his crimes, and that might not have met the "having completed your sentence more than 5 years ago" criterion for pardons.  Most importantly and most egregiously, though was the one thing everyone caught onto right off - that his father had made the first political contribution of his life beginning in April of this year, followed by the petition for pardon hitting the desks at DoJ (I originally typed D'Oh - go figure) in August of this year.

The contribution was some $28,500 and made to the Republican National Committee.

Turns out Toussie scammed Suffolk County out of $5 million along with all the homeowners he abused, on the way to becoming the largest landowner in Long Island.

I like the way the NY Daily News lead editorial characterized it:

either cheaply bought political favoritism or the work of a tone-deaf moron, Bush, and  "an example of why the U.S. electorate has been so desperate to foreclose on his presidency."

Well, the visions of Marc Rich (and payback for Marc Rich) dancing in pols' heads seem to have been short-lived.  Bush announced he's pulling Toussie's pardon back.  This raises two important questions: (1) can he do that, and (2) what effect will that have on his henchmen and their lust for pardons, not to mention the politics and optics for Obama.

The New York Times, as cited in Josh Marshall's piece over at TPM, states that Bush had sent a particular document, called a Master Warrant for Pardons, to the Pardon Attorney at DoJ, for the Pardon Attorney to execute.  This supposedly had all 19 pardons on it.  The story continues that the Pardon Attorney had not yet executed it and that the President had directed him not to execute it.

Ok.  The simple version would be: if a document is un-executed by the person who is supposed to execute it, it has no force and effect.  It is, in effect, a draft document which can be changed or modified without any legal rights or obligations arising at all.  It's no different than an unsigned contract, or an unsigned will, or an unsigned judgment.

Let's hope that where it is, and that that's where it ends.  Because if it goes further, it gets a lot more complicated, interesting and dangerous.  It's a nice, neutral principle everyone can agree on.

Of course, this being Bushworld, that is probably the last thing they want.

The first thing which makes this matter more interesting is this: that the pardon came to the President not through ordinary channels, but through Mr. Obstruction himself, White House Counsel Fred Fielding.  The Times reports:

    The White House said in a statement that the pardon had resulted from a recommendation from Fred F. Fielding, the White House counsel.
        "With respect to the case of Mr. Isaac R. Toussie, 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," the statement said. "He so advised the president, who accepted the recommendation."

        In the statement, the White House said that the Justice Department's pardon attorney, Ronald L. Rodgers, had not made a recommendation in Mr. Toussie's case.

This raises a big red flag in my mind, for a lot of reasons I'll elaborate on.

First, the normal flow of pardons and commutations is supposed to be that a petition for a pardon goes to the Pardon Attorney.  (That gate was bypassed here.) If it's less than five years after the completion of sentence, it's too early and won't get looked at.  (That gate was bypassed here.)  Once it hits the Pardon Attorney's office, it is to be investigated by the Pardon Attorney's office.  This includes checking with the prosecutors who prosecuted the case, and to look at the case record and a myriad of other aspects, to determine whether to recommend a pardon, whether the person is sufficiently reformed, and a plethora of other issues.  (The only investigation here seems to have been meeting Fielding's approval.)

Needless to say, if there was litigation pending against the person seeking the pardon over the transactions or occurrences which led to the conviction, as appears to be the case here - and in spades - that litigation would necessarily have to have been looked at.  Again, that gate seems to have been bypassed.

But the Pardon Attorney was bypassed entirely on this one, it would seem, seeing as how the White House Counsel proposed it to the President.  I can only think of two other, similar events which played out this way.  The more recent was I. Lewis "Scooter" Libby's commutation of sentence.  The older one was Obama's AG Designate Holder pushing the March Rich pardon through the Clinton White House in much the same way - bypassing the Pardon Attorney and getting it under the President's nose.  

So, it would seem, someone with a lot of juice managed to get in touch with the right person, who managed to get it under the President's nose.  Being the largest landowner in Long Island tells me you've likely got that kind of access.

Libby's case was pretty much sui generis, but one has to remember that it was a political exercise.  At the time, I diaried that Libby - and his knowledge -  had successfully blackmailed the President and Vice-President and made Bush and the USG his b*tches).  In that instance, astute observers will remember, the commutation was prepared and submitted to the Court in such a hurry (so that Libby would not spend a single moment in "real" custody) that there was no lack of back and forth both in the blogosphere and in the Court's own filings.  I commented then:

        And Bushie gave him not the pardon, but the commutation that will enable his keeping silence. This was obviously a very hurried endeavor. How many have commented on or laughed at the horrible WH lawyering which made a mess of the situation to the point the trial judge ordered a hearing on the sentence and conditions of supervised release, and then included a footnote asking the WH's opinion on what exactly it was that they meant?

And, as noted previously, when Bushie gave Libby that commutation, he lied about the particulars and the motivations.

What makes you think that leopard has changed his spots in the intervening 18 months or so?  Or, in so many words, that like others of Bush's screwups, it really wasn't one but was just made to look like one?

Was Katrina and the horrific response just a screwup, or was it the ideology the Republicans espouse coming to fruit, that fruit being in the form of privatized contracts, a little re-allocation of voting blocs (a substantial part of the African American Democrats moved from NOLA and have not returned, leaving that former patch of blue in a red state, redder), and some municipal union-busting.

Was the current auto/financial industry crisis just something out of the blue (that lots of people saw coming), or was it a deliberate, desired result that is leading to hundreds of billions flowing from the Treasury into private hands, coming massive social unrest and unemployment just as a Democrat takes over, and more union-busting?

Was this retracted pardon a paperwork screwup, or something entirely different?

You know my answer: this was no screwup.

This is really about Bush finding a way to obstruct justice and bury his crimes, while preserving the precedent of his Constitution-trashing conduct for the next Republican - wholly in character and consistent with his prior behavior.

I am unaware of any pardon ever having been revoked. That's not any, not ever.  Period.  If you think you know of one, show me the precedent.

So this is totally new ground.

Let us assume that there is a revocation of the pardon.  Obviously, Mr. Toussie is going to be aggrieved about it, and will surely try to fight, in court, to have that revoked pardon recognized.  That dispute will drag on at least another three to four years.  I say that because, while the papers say he is in litigation now in federal court in New York, over his conduct toward home purchasers and others, there is a general rule which states that appeals may not be taken until the completion in the trial court of all proceedings there - until a final judgment is entered.  There are a few, narrow exceptions, but I am unaware of any pardon having ever been the subject of litigation there.  So, it will likely be a couple years until any appeals court can even get a chance at deciding whether the pardon was issued, was revoked, and what the effect of each is.  And, then, an appeal takes - as a rule of thumb - a good year to 18 months.  That's before the Supreme Court could ever get a chance at it.  And a Supreme Court case is good for another 9 months to a year, assuming they take it.

All the while, the clock is running on the activities of Bush's crew and the statutes of limitation.

Let's assume that before leaving office Bush issues pardons to the central players in his administration - pick some names out of a hat.  The usual effect of a pardon is several-fold - the removal of disabilities which come because of a conviction, for one.  Most important to rectifying the abuses of power and finding out exactly what had been done so it can be undone and permanently made out-of-bounds (which should be an overriding priority come January 21), though, is that a person questioned about the actions which were the basis for the pardon can no longer assert the Fifth Amendment to avoid answering the questions.  Remember, the Fifth Amendment protects one against being compelled to incriminate oneself.  If the possibility of criminal exposure has been removed - say, by a pardon - then the possibility of self-incrimination is also gone and there is no legitimate reason to resist answering the questions.

But, suppose the pardon can be revoked.

If that is the case, then a legitimate, lawyerly argument can be made that despite the pardon, no, the possibility of self-incrimination has not gone away and, in truth, can never go away because any President could, at any time and for any reason (or no reason) revoke a pardon and expose the person to criminal liability for what they'd said.

That might tend to shut up anyone who received a pardon, dontcha think?  And that would accomplish one of the primary objectives Bush's administration has always hewn to - avoidance of oversight and thwarting transparency.

Let's look at another angle.

Suppose a pardon can be revoked.  If a future president does not revoke a pardon, one of the things logic tells us then is that the future president approves of the pardon and its continuing existence.  (Other things logic tells us about its continuing existence would be that the future president is unaware of it, or doesn't care, or is too busy, or whatever.)  In other words, if a pardon can be revoked, by not revoking a pardon that future president ratifies - expressly or sub silentio - the pardon and the conduct pardoned.  

Thus, assuming Bush pardons members of his crew, if Obama does not go ahead and revoke those pardons, the argument goes, then Obama must approve of both the pardons and what they did to need them.

My devious mind indicates Toussie may have been selected precisely for that purpose - to be such an egregious misuse of the pardon power that public outcry would demand the pardon's withdrawal, and then establish a precedent for allowing same.  And putting Obama in the position of either exercising the power to withdraw pardons of Libby, Deadeye, Fredo and the rest, or ratifying them by not withdrawing them. Of course, if the pardons can be revoked, then those recipients will never tell what they did.  They will doubtless raise the mere possibility of pardon revocation as a means to stymie ever testifying.  

Moreover, this attempt to revoke a pardon will also create a whole additional level of litigation by the recipients, who can be counted upon to claim the President has no such power to withdraw a pardon.  The plain text of the Constitution says "grant" but nothing about "withdraw" or "revoke".  And, the mere uncertainty as to the efficacy of a pardon (its withdrawability) would make for a valid objection to testifying, at least until the statute of limitations had run out.

There's your 12/24/92 Iran-Contra investigation-killing episode from this Bush crew.

But, there's more to this.  This is of a piece with one of the biggest objectives of the current Republican legal theory - the destruction of judicial review.  They've been testing the water with their toes and tiptoeing around the edges.  "Judicial modesty", "proper deference to the other branches", you name the euphemism.  But, in reality, the Republicans view the courts as something they can use to further control society and ensure the government is unaccountable.

Let us look back at the earliest days of the Republic, and to the case of Marbury v. Madison.  You - if you really studied your political science or constitutional law - will recall off the top of your head that the genesis of Marbury v. Madison was an attempt, by the outgoing Federalist administration of John Adams, to pack the offices in D.C. (Particularly, IIRC - I'm writing this off the top of my head - local D.C. judgeships) with Federalist supporters in anticipation of the incoming Democratic-Republican administration of Thomas Jefferson.  The documents giving the offices to the various Federalists had been prepared, but had not been completely processed through the Secretary of State's office and, when Jefferson came into office, their processing was never completed.  Marbury, disappointed in his quest for government employment by not receiving his appointment, sued Jefferson's Secretary of State, Constitution-framer and future President Madison, in mandamus to compel him to provide the commission appointing Marbury to the promised office.

Mandamus is a prerogative writ* which, when granted, is a court order compelling a governmental officer to perform a particular ministerial duty or obey a directive.  

Marbury wanted to have the Court compel Madison to give him the commission he required before he could act in the government position to which he'd been appointed.  Madison's (and Jefferson's) position was, unsurprisingly, that because delivery of the commissions had not taken place, the appointment was not complete and therefore could be nullified.  That position or maybe a little short of it, if we believe Bush, is where Toussie is.  In Marbury, IIRC, the commissions had been executed but not delivered.  Toussie's pardon, Bush says, has not yet been executed.

Marshall and his Court used the case to expound on and establish the Court's right to say what the law is.  We all remember Marbury for establishing the principle of judicial review, a strong bit of activism in its own right.  No one really cares whether Marbury got his job or not.

But the point of a lot of what the so-called Unitary Executive (or, just the way Bush's administration has approached the law) has been about has been attacking Marbury in particular and judicial review in general.

Remember early in the detainee cases, where the administration argued that the detainees couldn't even file papers in court?  Then, when they were deemed eligible to file papers in court, that the court couldn't act on them?  Six plus years of re-establishing every basic principle of how the courts work and the administration fighting against it every step of the way, and with levels of sophistry that are just mind-blowing.  And remember the wonderment among government lawyers (Goldsmith and Comey come to mind) about Cheney just grabbing power - particularly as to warrantless wiretapping - rather than asking Congress for it and almost certainly getting it?

One has to ask:  Why?

Well, so long as Marbury stands, the courts stand as a bulwark for the people against their government.  It used to be that Congress, by exerting oversight, enforcing subpoenas, and demanding accountability, was able to rein in the Executive.  No one can - particularly given the Administration's conduct during the unfolding warrantless wiretapping debacle - seriously argue any more that Congress is much more than a debating society propped up to give the appearance of representative democracy.  Toussie's case, having facts pretty similar to Marbury's, could be the vehicle that would cut the guts out of Marbury.  And, given the current composition of the Supreme Court, I can see a 5-4 majority to do just that.

No mistake that this came out of Bush's White House Counsel's office.

Oh - In case you are wondering how a pardon by Bush of his henchmen would be addressed by Obama, go read this.

Merry Christmas.

* There are five prerogative writs: mandamus, prohibition, quo warranto, certiorari, and habeas corpus.  Mandamus, as described above, requires performance of some ministerial duty.  Prohibition is the opposite of mandamus.  Quo warranto is a writ used to challenge the right of an officeholder to an office, usually by pointing out a defective or absent oath of office.  Certiorari is a court ordering a lower court or governmental body (like a zoning board, for example) to provide the record of a proceeding to that higher court for it to review for error.  Habeas - the last couple years have taught us all about that.  They are called prerogative writs because they originally stemmed from royal prerogatives that the sovereign could exercise to make subordinate officers in his government do their jobs more to his liking.

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    More reporting (5.00 / 1) (#1)
    by scribe on Thu Dec 25, 2008 at 12:12:04 PM EST
    from the NYDN:  Toussie's lawyer was a former denizen of Bushco's White House Counsel's office, Bradley Berenson.  When DoJ rebufed him, he went directly to the WH.  And, it appears, a lot more of his buddies donated heavily to the RNC (beyond his dad).

    This made the cover (NYDN, here) of both NYC tabloids (NY Post, here) today, even ahead of the killer-Santa-with-a-gun story.