Bush: Please Beg My Pardon

In the waning days of this worst-ever presidency, Bush still can't get it right. Even as he begins granting pardons, and in one case-- "withdrawing" it, he might have violated the constitutional yet again.

According to the WSJ law blog, 'pardoned-unpardoned' Isaac Toussie, the Brooklyn real estate developer whose pardon was revoked on Christmas eve, just 24 hours after Bush issued it, has a good case.

“There are two types of pardons — conditional and unconditional,” Harold J. Krent, a Con law prof and the dean of Kent College of Law, told the Law Blog today. “Conditional pardons depend on the beneficiary doing certain things, such as leaving the country or the Communist party, or not consorting with undesirables. There, presidents have the right to determine unilaterally whether someone has failed the condition. But, in Toussie’s case, it was an unconditional pardon. So, in my mind, when the pardon vests or becomes final then it’s a legal act that can’t be revoked. That’s going to be a detail question. Did Bush announce the pardon? Was it delivered?”

So what happened in Toussie’s situation? For starters, the pardon was announced in this DOJ press release, put out Tuesday. We’re not sure whether, or how, Toussie received notification. However, in this McClatchy story about Eduviges Duvi Gonzalez-Matsumura, whose name was on the same pardon list with Toussie’s, Gonzalez-Matsumura said that a DOJ official called her on Tuesday with the news of her pardon.

Where is this delivery requirement found? In an 1869 case in the Southern District of New York, called In re De Puy. In his holding, U.S. District Judge Blatchford implied that a pardon became valid upon delivery to the prison warden in charge of the beneficiary.

“I think it could be challenged,” Dan Kobil, a prof at Capital U. Law School, told the LB. “It should be possible for Toussie’s attorneys to go to court for a declaration that the pardon became effective when the warrant was signed and, depending on the facts, when it became communicated to him or when he read it.”