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President Bush Withdraws Pardon; Dispels Questions Regarding His Loyalty to the RNC.

December 27, 2008

It’s just another day at GWB’s White House Rodeo . . . .

President Bush withdrew a pardon he gave to one Isaac Toussie of Brooklyn (no relation to the defendant in Toussie v. United States, 397 U.S. 112, 114-15 (1979)). Apparently Toussie’s father is guilty of the high crime of making political donations to the opposing party (the Democrats, that is). The media is abuzz with questions regarding whether the President can do such a thing. The DOJ has offered the feeble explanation that the beneficiary was not “notified,” hence the pardon can be withdrawn (White House press release = Notice by Publication, no?). Perhaps DOJ should consult with the Solicitor General prior to attempting to explain little known legal issues in an attempt to offer one legally sound justification for what President Bush did, rather than the usual series of evolving explanations that make Carl Rove proud. More on that below.

A pardon is an act of Executive Grace. When formation issues arise as to that act of executive grace, the resulting discombobulated’s case will be subject to disposition under contract principles, just like a plea agreement (and yes, I made a noun from an adjective to garner some points with the Republican administration while it is still in office).

At issue is not whether Toussie was notified, but whether he accepted the pardon. A pardon cannot and will not be forced on anyone, so the issue is not notification, per se, because notification presumes acceptance. The sentinel case addressing application of contract principles in the criminal justice setting is Santobello v. New York. Ironically, none other than New York attorney Irving Anolik argued Santabello as a young lawyer. (Ironic only to me, I suppose, because he knows me from my days as Tarkoff’s Legal Secretary.)

Amnesties and pardons were explored at length in oral arguments for Stogner v. California. (The hyperlink will take you to a recording of those oral arguments.) I assisted NACDL with its Amicus Brief and attended oral arguments as a member of the Amicus Defense Team, hence my quick recollection. I vividly recall the Solicitor General’s remarks about retracting pardons. He was most impressive before the Court (and I am not easily impressed), unhesitatingly answering questions that left most people scratching their heads (but then nodding after each time Mr. Gornstein answered the Court).

The only alternative legal theory for analyzing our rodeo clown fight du jour could be that because this is an act of executive grace, it should be analyzed under contract principles as a gift. Why? Because how can there be consideration and grace? (The three elements to a contract are: Offer, Acceptance, and Consideration (i.e., the vigorish or “vig” for those who have read my previous posts.))

Grace, by definition, requires that the guilty beneficiary not have anything to offer in return for that which is bestowed upon him. President Bush has been the recipient of much grace in his life, so it’s disheartening that he does not see the parallel now that he is in the position to offer that which has been so freely given to him.

While it may seem unfair and in poor taste, so long as there was no acceptance (or detrimental reliance) on Toussie’s part, then, absent some innovation in the law (or perhaps under a gift analysis), the pardon can be retracted.

That’s just how life is at the rodeo, folks (and why rodeos belong in Texas, not the White House).

For some fascinating historical perspective, click here.

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