Friday, December 26, 2008

I unbeg your pardon-- I never promised you, said the man in the Rose Garden


For readers who want to know whether George W. Bush can in fact take back a pardon to Robert Toussie already given, there is a blog solely devoted to pardon issues, appropriately titled Pardon Power. The most recent post gives a historical run down of pardons given and taken back.

The argument made in that post is based on a series of precedents by the executive branch. Generally speaking, such precedents count for a lot in construing the Constitution. If the text is ambiguous or silent on the question whether the President can take back a pardon once offered, an unbroken line of practice on the question, if otherwise reasonable, is a powerful argument.

The question of taking back pardons, it should be noted, is really only the tip of the iceberg. The more general question is why the President's pardon power should be construed as broadly as it has been. There are many possibilities for abuse of the pardon power.

Even if the President has unreviewable power to grant pardons under the Constitution, it does not follow that the system cannot be rationalized and made subject to various procedures. The Executive branch already has structures for processing pardons. Moreover, Congress has the power, through its horizontal powers under the necessary and proper clause, to create and structure executive departments. Obviously, Congress cannot act so as to limit the President's prerogatives, but this does not mean that Congress may not set up agencies within the Executive Branch to assist the President in his determinations. The President, in turn, may have political reasons for employing these structures even if they channel the exercise of his discretion.

In this case, it appears that the pardon to Robert Toussie may not have gone through the Justice Department's regular procedural channels for granting pardons. This shows one of the reasons why these procedures are a good idea. It also reminds us of the fact that the Bush Administration has regularly tried to short-circuit a series existing procedures for decisionmaking-- ranging from intelligence analysis to the treatment of detainees to plans for dealing with post-war Iraq-- all with disastrous results. You would think that by now the White House would have learned that there are sometimes good reasons to vet decisions with people who don't already agree with your proposed course of action.


These precedents for taking back a pardon all involve rapid subsequent re-pardons, denying the courts a chance to review this issue.

The text of the Constitution grants the President the power to grant pardons, but grants no power to revoke pardons. To allow the revocation of pardons would permit all kinds of mischief as one President pardons a citizen at the end of his term and a new President revokes the pardon at the beginning of his term.

This is similar to the text granting Congress the power to declare war, but not to undeclare war. Once a war is underway, it is too late to unring that bell.

If Mr. Bush does not follow precedent, change his mind and re-grant the pardon, we could have a very interesting court challenge as to the parameters of the pardon power.

The old cases use conveyancing types of analysis - delivery of a deed being necessary to completion of the transfer.

What I think is more interesting is the assumption that a pardon cannot be revoked, even or apart from delivery (or as the Biddle case might indicate, a kind of notice/publication as substitution for delivery)

The theory seems to be that the power to pardon somehow negates any power to cancel a pardon. Why? There are lots of worldwide settings where pardons have been subject to revocation. It is also deemed inherent in other branches of government in their exercise of specified powers. Legislation can be revoked, case law can be overturned. Why wouldn't a President, or a subsequent President, be able to revoke a pardon?

The ability to pardon is a political act and politics change.

Bart: Try reading the linked article before writing arguments that have already been addressed.

I think the issue shouldn't be framed as one of "taking back" or "revoking" a pardon. Everyone is agreed that once the pardon is validly issued, it's final and irrevocable: in this respect it differs from a statute, a regulation, or an executive order.

The only question is the moment when, in the contemplation of the law, the pardon is in fact validly issued. One can come up with arguments for a variety of different triggering events, but like many line-drawing exercises in the law, relative to the larger purposes involved the decision is more or less arbitrary.
Frequently with these sort of questions determinacy and stability of the rule is much more important than the rule's precise content: the precedents do seem to suggest delivery rather than signature as the relevant triggering event, and I think there's a strong case to be made with sticking with that in spite of the hardship it might work in an individual case. (Similar hardship can occur on any side of an arbitrary line: if we make the event the President's signature of the pardon, someone can inequitably be denied a pardon after announcement but before signature. And so on.)

As for "undeclaring" war, the issue is very different. I don't know anyone who claims that Congress cannot repeal a declaration of war in the same way that it can repeal any other statute. That may not serve to terminate the war in the contemplation of international law, but that is a different issue from the domestic effects of such a repeal.


To Declare War means to formally announce the initiation of a military conflict.

Nowhere in English literature or law has the term "declare war" been used to announce the cessation of hostilities.

This 1984-esque counter textual concept is hardly a majority legal opinion. Rather, its only currency is among the anti military left.

Wars are traditionally ended with peace or ceasefire treaties negotiated by the Commander in Chief or his military or diplomatic subordinates.

Wars are traditionally ended with peace or ceasefire treaties negotiated by the Commander in Chief or his military or diplomatic subordinates.

# posted by Bart DePalma : 4:31 PM

Except in Iraq where it's "surrender" if Obama ends the war and "victory" if Bush is ending it.

Wars are traditionally ended with peace or ceasefire treaties negotiated by the Commander in Chief or his military or diplomatic subordinates.

Only in the way that land-owners are traditionally white men.

How come Sandy hasn't posted to blame this on the interregnum?


I did not claim that Congress could affirmatively declare peace. (That is a separate, and much more complicated, question.) I claimed only that Congress could repeal a declaration of war.

I simply do not see how that conclusion can be avoided, unless one claims (a) that a declaration of war is not a statute or (b) that one Congress can entrench a statute against repeal by future Congresses.

Alix Cavanaugh said...

I did not claim that Congress could affirmatively declare peace. (That is a separate, and much more complicated, question.) I claimed only that Congress could repeal a declaration of war.

A unilateral cessation of war is known as a surrender. The term declaration of war has never been used in English literature or law to mean to compel a surrender.

I simply do not see how that conclusion can be avoided, unless one claims (a) that a declaration of war is not a statute or (b) that one Congress can entrench a statute against repeal by future Congresses.

A declaration of war is not a statute, but rather a check on the Executive. A DoW is a one time authorization for the President to go to war. It is akin to ratification of treaties or confirmation of the President's nominees. None of these approvals can be reversed after the fact.

How come Sandy hasn't posted to blame this on the interregnum?

It's not the length of the interregnum, per se, which causes problems with the pardon power. It's the lameduckitude. IMO, there should be no pardons issued in presidential election years from Sept 30 or so (date somewhat arbitrary) until inauguration. That way suspect pardons at least result in a political price.

bb said...

BD: Wars are traditionally ended with peace or ceasefire treaties negotiated by the Commander in Chief or his military or diplomatic subordinates.

Except in Iraq where it's "surrender" if Obama ends the war and "victory" if Bush is ending it.

George I entered into a ceasefire to suspend hostilities with Iraq and George II just entered into what is essentially peace treaty with the elected Iraqi government setting the terms for US military presence after our victory in Iraq.

Neither war with Iraq nor any war beforehand was ended by Congress withdrawing a declaration of war or its functional equivalent - the AUMF.

George II just entered into what is essentially peace treaty with the elected Iraqi government setting the terms for US military presence after our victory in Iraq.

# posted by Bart DePalma : 6:41 PM

Yes, the "victory". We'll be holding the "Victory In Iraq" parade in DC on January 20th. I hope you can make it.

Bart DePalma wrote: "A declaration of war is not a statute, but rather a check on the Executive. A DoW is a one time authorization for the President to go to war. It is akin to ratification of treaties or confirmation of the President's nominees. None of these approvals can be reversed after the fact."

I know of no authority for the claim that a declaration of war is not a statute, and it seems to me an extremely implausible interpretation of the Constitution.

Confirmation of the President's nominees is an irrelevant analogy, as this is obviously not a legislative act -- indeed it is not something that Congress does at all, but rather something that the Senate does. Proposing constitutional amendments is a special case: the authorization for that lies in Article V, not in Article I, it is settled law that the President's signature is unnecessary, and indeed the almost unbroken custom is that the President does not sign constitutional amendments whether he supports them or not.

By contrast, declarations of war have historically always been given to the President for signature in confirmity with the presentment requirement, signed by him, published with the other statutes, etc.

Moreover, the power "to declare war" is one of a list of powers given to Congress in article I, section 8. No one has ever suggested that Congress can exercise other powers on that list in any way other than the passing of statutes.

It simply beggars belief to say that every item in the single sentence that is section 8 is a power that Congress exercises by passing statutes in confirmity with the requirements set out in the immediately preceding section, and that the one in question -- plucked from the middle in spite of grammatical parallelism -- isn't such a power, without the slightest textual indication of that difference.

I think you may be confused by the fact that, from the point of view of international law, it is not relevant whether a state declares war by statute or through some other method; international law treats different kinds of declarations analogously. But that is irrelevant as a matter of domestic law.

Similarly, international law considers as treaties both the things the U.S. Constitution terms "treaties", made with the concurrence of the Senate, and the things constitutional practice has dubbed "executive agreements", made by the president alone. But that is neither here nor there for domestic law, and it would be absurd to argue on that grounds that the President can "make treaties", in the sense in which the term is used in the Constitution, without Senate concurrence.

Incidentally, it is wholly unavailing to claim that because "declare" is a positive verb, it should not be read as repealable: virtually all of the powers listed in section 8 are stated in terms of positive verbs. "Punish" is a positive verb, but does that mean that a penal statute, once passed, is forever immune from repeal?

As for "announcing the cessation of hostilities", I never said that Congress can do that -- I'm not even sure how to interpret that phrase. Congress can't agree to a peace treaty, certainly. If we accept, arguendo, there is some inherent power in the executive to defend against attacks, then that power survives the repeal of a declaration in the same way that it preexisted a declaration.

And I explicitly reserved the question of whether repeal of a declaration of war would end the state of war in international law -- my sense is that in general it doesn't: as a declaration is not necessary to begin a state of war in the contemplation of international law, repeal of a declaration can hardly be sufficient to end it. But, again, that's a different question.


I am truly enjoying this conversation.

You make a very interesting and compelling structural argument concerning the location of the power to declare war in Article I, Section 8 as compared to the powers to ratify treaties and confirm nominees located in Article II.

Interestingly, Yoo makes a similar structural argument that the power to declare war in Article 8 is not a prerequisite for the Commander in Chief to initiate military operations because the DoW power is not located in Article II as were the checks of ratification and confirmation.

However, the Yoo position has been criticized (justly IMHO) on the ground that Congress can exercise the powers as they are written in the Constitution regardless of where they are located. Granting Congress the power to declare war makes no sense if the President can start his own wars without congressional authority.

Similarly, I would contend that a declaration of war by the plain meaning of that phrase is more akin to a check on executive power like ratification and confirmation than a statute seeking to regulate the government or citizenry, even if the DoW is included among other powers exercised by statute.

DoWs do share some, but certainly not all, traditions such as presentment identified with traditional statutes. On the other side of the scale, DoWs are never initiated by Congress, but rather are granted in response to a President seeking permission to wage war. Also, President's never veto declarations of war. These are traditions normally identified with congressional checks on executive power like ratification and confirmation.


I think we agree that Congress must declare war before a President can initiate military operations against an enemy.

(I do not believe a DoW is necessary where the nation has already been attacked by an enemy and is in a state of de facto war, but that is a different discussion)

If the President requires congressional authority in the form of a DoW to wage war, what legal affect do you suggest a withdrawal of a DoW would have if not to end the President's authority to wage war?

If your hypothetical power to withdraw a DoW does not have the effect of ending the President's authority to wage war, then is it a power at all?

I hope you all enjoyed the Christmas holiday.

I suggest LSR Bart has missed a vital point in assuming that the Pardon has actually been issued in the case under discussion.

At the time of the separation of the 13 original colonies from the dominions of the Crown, the grant of pardons was a prerogative act of the Crown. The power was exercised by the Crown on the advice of ministers responsible to Parliament and the Pardon took effect when the King/Queen signed Letters Patent under the Seal granting the Pardon.

The law was that a pardon had to be accepted by the recipient which involved an admission of guilt and the burden was on an accused claiming a pardon to produce the Letters Patent into the Court proceedings - which then acted as a bar to further proceedings. Governors of colonies exercised the Royal Powers in the name of the Crown. They still do in the few remaining dependent territories.

Thus it is understandable that the identical power has continued with the governors of states with regard to matters of offences against state law and, of course, the Founding Fathers considered that the powers of pardon for offences against the United States ought to be vested in the President as head of the US Executive branch.

In Burdick v. United States 236 U. S. 79 (1915) the Supreme Court considered the case of a Pardon granted by Woodrow Wilson under the seal of the Department of Justice. Burdick, the Editor of the New York Tribune, refused to accept the Pardon. The Court held that a Pardon properly understood had the same characteristics as the English variety and (i) had to be executed with the formalities of a deed (signed, sealed and delivered) and (ii) the recipient had to accept it - which carried with it admission of guilt and (iii) he plead it in proceedings for the offence pardoned. It was thus a different animal from amnesty or as in the Burdick case immunity for a witness).

As I understand it, in the case at issue President Bush signed the direction to the Department of Justice to seal and issue the pardon in question, but revoked that instruction before the document was drawn up, sealed and delivered to the beneficiary. See the White House press release:-

Based on information that has subsequently come to light, the President has directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie. The Pardon Attorney has not provided a recommendation on Mr. Toussie's case because it was filed less than five years from completion of his sentence. The President believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made."

If the law on execution and delivery of deeds as an essential formality is still applicable, the Toussie Pardon was still incohate and the direction that it should issue could be and was withdrawn.

Mary refers to conveyancing. It is true that conveyancing is generally done by way of deed, but the evidencing of a pardon is more properly a deed poll - i.e. a deed executed by one party only as conclusive evidence of some intention or act and the formalities are necessary before judicial notice can be taken of the act and its effects because, of course, a pardon is not issued for consideration (or at least ought not to be). In fact the concern in some quarters seems to be that there might have been "rather too much consideration".

I am sure that Bart's vast knowledge of the formalities of execution and delivery of deeds poll will shortly be deployed to show that Burdick v United States no longer represents the law, but I do not presently see what the introduction of Bart's equally confused (mis)understanding of the laws of war has to do with the matter under discussion.

Scott Horton raises the interesting thought that perhaps President Obama can in fact rescind a Bush pardon:
"There’s more drama to come, but the prologue is already very interesting. And the precedent could prove unnerving to those receiving Bush’s last-minute pardons. It suggests, after all, that Barack Obama has the power simply to revoke the pardons–something that legal scholars considered, up to this point, almost unimaginable.".
Anyone want to have a go at this line of enquiry?

Canceling a pardon seems to me to be a kind of double jeopardy.

Revoking a pardon: There are English cases to the effect that a pardon procured by fraud is void.

In Albert H. Putney's work: "United States Constitutional History and Law" (Hein 1985) it is stated at para 180 on p 290: "A pardon procured by fraud is void". However, it seems the authority for that proposition is merely an Attorney-General's opinion as to what the AG thinks the law is.

My inclination would be to say that once the pardon has been duty executed, delivered and accepted, it cannot be undone unless one of the grounds for revocation of a duly executed deed is made out. The whole purpose of requiring the formality of letters patent/deed is to create legal certainty.

Quaere whether the determination that the deed has been procured by fraud is a matter for the president or for the court. I would say it is ultimately a matter for the Court. There is an Oklahoma case to that effect: Ex parte Warren 39 Okl.Cr. 348

"Having reached the conclusion that in the case before us there is not sufficient evidence to show fraud in procuring the commutation, the action of the Governor in revoking the commutation is without authority of law and void. The prisoner having served out the full term to which his sentence was commuted, his further imprisonment is illegal and he is entitled to be discharged from the imprisonment of which he complains."

Quarere Would the procuring of a pardon by corruption count as fraud?

What about a potential pardon announced and not granted? The common law at the time of the Founding Fathers was that no estoppel could bind the Crown - I know not if the doctrine has survived.



I'd like to give a full response to your question about the effects of repealing a declaration of war, but (1) I'm about to head out of town for a few days and (2) I don't want to further hijack what is, after all, a thread about pardons. So I'll sketch a brief answer, and perhaps we can continue this discussion in another forum. (Also, at the end, I have a real comment about pardons, as a way of making amends to the other posters.) Basically, I think that a declaration of war has two effects in domestic law: (1) it triggers certain conditional statutes and, for lack of a better phrase, common-law norms that have a declaration of war as the condition for their operation; and (2) it gives the President authority, within specified or implied limits, to make war.

With respect to (1), after repeal those statutes and norms cease to be in force. (Note that some common-law norms, such as the prohibition on trading with the enemy, depend merely on the actual fact of war, not on a declaration. The Eliza Ann, Dods. 243, 247, 165 Eng. Rep. 1298, 1300 (Adm., 1813); The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862)). With respect to (2), repeal does indeed eliminate the authority that the declaration of war granted the President. It doesn't force him to negotiate or oblige him to announce surrender, but it does oblige him to cease the war-making activities authorized by the declaration. It doesn't eliminate his power to respond to sudden attacks; I recognize that there will be -- even on the fairly restrained reading of that defensive power which I favour -- grey areas, but I think a protracted foreign war doesn't lie in those areas. On the other hand, repeal of a declaration wouldn't prevent a President from taking reasonable measures to protect the safety of withdrawing troops.

As for the effects of repeal of a declaration in international law, I don't feel confident enough on the subject to offer a firm opinion. This is my very amateur opinion: my sense is that modern international law as to the existence vel non of a state of war places considerably more weight on the actual presence or absence of conflict than on the formal pronouncements of the parties (regardless of the organ making the pronouncements). So repeal might end the state of war in IL if accompanied by acts that effectively ended the fighting; on the other hand, perhaps even a signed and ratified treaty wouldn't be sufficient if the fighting didn't actually end (one thinks particularly of multilateral conflicts). But I emphasize my lack of expertise on this; I also note that it may well be the case that conditions for the existence of war are different for different IL purposes.




What are the English cases to the effect that a pardon procured by fraud is invalid? I'd be very interested to know?


I don't have much to add to my earlier comment; I still think that the question of whether to draw the line at signature or at receipt is fairly arbitrary, and the most important thing is that the rule be clear and stable.

But as a side note: I don't think it can be claimed as a general principle that presidential acts become efficacious at the moment the president clearly signifies his will (by signature of a document, etc.). There is at least one very obvious, textually specified, exception: art. I, sec. 7 specifies that the President "shall return" vetoed bills and that "if any Bill shall not be returned", etc., it shall become law unless Congress is adjourned.

Although I don't know of any instance of it, it seems clear from the text that the President can announce that he is vetoing a bill, write out his objections, and then change his mind before returning it to Congress and sign it.

Similarly, if the President, rather than walking the vetoed bill over to Congress or having an aide deliver it, decides to mail it, and the bill is lost in the mail and not recovered until ten days (in session) have elapsed, I think that the President is out of luck: the bill will have become a law through his lack of care in effectuating the return.

I offer no opinion about what analogical light, if any, this point sheds on the pardon power.

Another 1925 case Ex Parte Grossman, 267 U.S. 87 (1925) also contains language supporting the proposition that the US Supreme Court looks to the common law understanding at the time of the Convention when deciding the scope and form of the pardoning power.

Joshua Marshall's Talking Points Memo quotes a former US Pardon Attorney as saying:-

"But from what I can tell, the Pardon Attorney doesn't 'execute' anything. The current system of having the Pardon Attorney create certificates of pardon only goes back to the Eisenhower administration, and was then apparently only done to relieve the president of the chore of signing so many pardons and commutations. I spoke to former Pardon Attorney Margaret Colgate Love (1990-1997) who told me that "receiving the president's warrant and sending notifications to the petitioners is purely 'a ministerial act of notification.'" In layman's terms, at this end of the transaction, the Pardon Attorney's role is really just a matter of paperwork. "When we received the Master Warrant from the president," said Love, "what our job was was to notify them, by telephone, and eventually by written notification. The document evidenced the president's action. We never assumed that that document had any necessary legal significance."

I question the validity of Ms Lovelace's view: surely the President's warrant to the Pardon Attorney is to execute the documents evidencing the exercise of the power, seal them and deliver them to the pardoned person (presumably normally by delivery to the attorney for the applicant).

I looked up Ford's pardon of Nixon and it was done by way of a Proclamation. Judging by this image of the Proclamation in the in the Gerald R. Ford Presidential Museum Pardon of President Richard Nixon, the Proclamation is signed by the hand of the President but does not appear to be sealed. But proclamations are public official acts which require publication and the courts take judicial notice of them. So, if anything a more public document than a grant of pardon by letters patent or deed.

Alix Cavenaugh asked about English cases on pardons procured by fraud. A number of them are cited in US cases, but I don't have the English Reports at home and I do not think there is a modern English case on the subject

Tomlins & Grangers's Law Dictionary (1835) gives some citations which all pre-date the 1688 Glorious Revolution: "It has been already mentioned as a general rule that [if] it appears by the recital of the pardon that the [sovereign] was misinformed or not rightly apprised both of the of the crime and also how far the party stands upon record the pardon is void upon a presumption that it was gained from the king by imposition. See Yel.43, 47; Cro. Jac. 18, 34, 548; 2 Roll Abr 1, 88, 352; 26 Raym. 13; 1 Sid. 41; 3 Inst. 338."

Add to the list of Supreme Court cases: United States v. Wilson, 32 U.S. 7 Pet. 150 150 (1833) relating to an Andrew Jackson pardon.

"A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court.

It is a constituent part of the judicial system that the judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially. A private deed not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted upon. The looseness which would be introduced into judicial proceedings would prove fatal to the great principles of justice if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles and would overturn those rules which have been settled by the wisdom of ages"

I think that this is the argument against a pardon being brought into court to stay proceedings or conviction or whatever without a formal document being produced.

This comment has been removed by the author.

Mourad - I would agree that a pardon is similar to a poll deed, although I have seen it referenced as being more similar in nature to a charter and there is some force to that argument as well. I was referencing the analysis of the pardon and delivery act as being like a conveyancing analysis to help clarify the emphasis that was being placed on the formality of delivery in the older cases, not to indicate that a choate interest was being transfered for consideration. Sorry for that confusion.

I still go back to the references made over and over that pardons simply "cannot" be revoked, none of which seem to cite any authority. All kinds of "final acts" of government are revocable by that same branch. Final orders in cases can be rescinded, revoked and nunc pro tunc-ed, as well as overturned.

Legislative acts aren't like Orders, but can be overturned. I don't think it is enough of an analysis to simply say pardons are not "like" order and statutes and acts of the other branches of government and they just "can't" be revoked.

Canada's NPB can both grant and revoke pardons - where did it get the authority to revoke if that, conceptually, just "can't" be done? Many states (maybe all, I don't know, but definitely some) allow for and grant conditional pardons. How can an irrevocable act be conditioned?

Legislative amnesty has been overturned - most recently and broadly in the Argentine and Chilean cases. Musharef threatened to revoke Sharif's pardon.

Since no one is pointing to authority other than self-affirming statements, it seems to me that the argument that pardons cannot be revoked rests on some sort of vesting analysis. But how do you become "vested" in an "act of grace?"

I'm ready to believe it is an absolute, if someone shows why it is and absolute. But until then, it's my nature to question and I question the bald nature of the statements that a pardon cannot be revoked without much authority. It's like the statement that precedent is binding - it is, until it is overturned.

If the Constitutional conceptualization of pardon is an Executive determination that the public interest is best served by foregoing the punishment, then why can that exercise not be subject to modification or revocatin if the public interest is later determined to be better served by the enforcement of law?

I don't see a double jeopardy argument bc there would never be two trials.

Oh well, I'm sure it is all in hand and that the power must be irrevocable, bc so many say it is, but I'm agnostice on it based on what I've heard and read to date.


One does not have to enjoy an expertise in pardon law to read the case you offered.

The Burdick case discussion of the formalities of serving pardons was dicta in a case deciding the issue of whether the recipient may refuse a pardon. There is no analysis of whether the Constitution or statute requires such formalities for a pardon to come into effect or whether Article II or Due Process allows a President to withdraw an announced pardon without such formalities.


Liberty interests in criminal law are seldom allowed to be revoked after the fact.

Legislatures are forbidden from enacting ex post facto laws.

The Executive may not seek to reverse legitimate jury acquittals.

I would suggest that the recipient of an announced pardon could also make a fairly convincing due process argument that he has a liberty interest in such a pardon that cannot be revoked based upon the mere lack of old British formalities that are not required under the Constitution.

See this post on Professor Michael Froomkin's blog Bush "Revokes" A Pardon (When Do Pardons Vest?) which the good professor followed up with some second thoughts: Pardon Update (Updated).

I think Professor Froomkin got it right first time. Professor Kalt blogging on Concurring Opinions says this: More on the President's Attempt to Revoke the Toussie Pardon.

Royal Pardons under the Great Seal had to "pass the seal" before they were valid - and the Great Seal is in the custody of the Lord Chancellor. Pardons could also be granted by letters patent under the Privy Seal (in the custody of the Lord Privy Seal) and by warrant under the Sign Manual (i.e. personally signed).

I'm old enough to remember the old formalities for the due execution of a deed - the document prepared and a lead, wax or paper seal affixed. The grantor then signs the deed, places his finger on the seal and intones "I deliver this as my act and deed". One then gets into the area of actual and constructive delivery, delivery in escrow, etc.

I still take the view that the pardon is evidenced by the sealed document - not by a telephone call or an announcement.

I remember that in the bad old days of reprieves from hanging, the governor of the prison would be notified by telephone from an official in the Home Office that the Home Secretary had decided to recommend the exercise of the prerogative of mercy to the Sovereign - that would put the execution on hold - but it was only when the warrant commuting the sentence to life imprisonment had come from the Palace that the warrant of execution would be formally set aside and the prisoner removed from the condemned cell.

I would argue that once perfected by sealing and delivery, a President may purport to revoke a pardon, but the revocation will be amenable to judicial review -that's what happened in one of the cited cases and the Court declared that the purported revocation was void and of no effect.

That militates for legal certainty: the Courts require that the act of pardon be executed with formality (Proclamation, Grant, Deed) so that the court may notice it - and - while the discretion to pardon seems in US law to be virtually unreviewable (whereas in the UK the Court will now review the Minister's advice to the Sovereign), the decision to revoke does seem to be reviewable.

Thus, while the requirement for formality gives a few days for second thoughts, once sealed and delivered, a pardon should be final subject only to the fraud exception - the practice of a deception on the grantor.

Thus one avoids what would seem most undesirable - one president granting and a successor revoking without needing to show cause.

Take the case of a reprieve, would a commutation by pardon revoked without good cause not render the execution both cruel and unusual?

There is at least one instance in US history of the usual effects of pardons being undone, namely, those of Andrew Johnson after the Civil War. In Section 3 of the 14th A, those pardoned were disbarred from all offices, state or federal, except by Congressional permission (later granted).

Mourad - I was taught all the formalities, although they were waning vis a vis actual use. I think it would take some pretty exhaustive review of the extent to which "federal" law, vs. state law, has done away with formalities in related areas to make a final determination on the need for the formalities v. publication or a lesser standard. I'm a bit agnostic on it, although I would probably lean towards publication without mistake being sufficient.

Since the Constitution does not delineate the manner in which pardons shall be executed, it would seem to me to be arguably within the power of the pardoning authority to determine the manner in which a pardon shall be deemed final and effective. In particular if estoppel is not effective against the pardoning power. But either - or, I'm not real vested in either argument.

I still come back to the issue of WHY a pardon, an act of grace, cannot be revoked and I'm still not seeing anything cited that has much authority. Which case has a revocation that was found to be of no effect and what were the arguments based upon and was the court a court of final appeal? Was it found to be of no effect bc formalities had been formalized and was the only argument made one of whether the prior acts were complete before the revocation, as opposed to a power to revoke separate from the status of the formalities?

I just don't think I've seen statements and authority (as opposed to how people believe it should work) that make it as cut and dried. In the same breath that people are saying pardon decisions are unreviewable (and I think there are actually some issues beyond fraud there as well, based on the construct of our Constiution as a whole document) they are saying that revocations are reviewable, or that if there is fraud (on whom - the public or the Executive or...) maybe there is an exception to judicial review there, or... And I just go back to the same issue - that there does not seem to be any analysis of what about pardons makes them so different from other Government or Executive acts that they cannot be revoked?

Almost nothing that is framed as absolute in the law is, truly and without exception, absolute (hence your indecision re: fraud and hence the whole of the embodiment of equity) Even absolute immunity has an ultra vires aspect for actions that can make it not apply.

Bart - the ex post facto comparison makes no sense. A pardon can create different issues depending upon the stage at which it is granted (before trial and conviction, even with a revoked pardon the person will be entitled, if the statute of limitations has not already run out, to all due process and a full and fair trial) but it has at its heart the notion that someone who is guilt of violating the law as it existed when it was broken and who has had the opportunity for a trial with all protections of due process and has been found guilty, will not have to bear the punishment for their guilt because of a decision by the head of the branch given enforcement responsibity for the law.

Basically, the only ex post facto (and equal protection for that matter) aspects of a pardon have to do with ex post facto carving out a person or group of persons who will receive different, "pardoned" treatment under the law. There is no liberty interest associated with completed criminal acts - and I guess that is a part of the issue of the element of vesting for that matter. Again, how does one vest in an act of grace.

I think Mourad might have a bit of the better argument that if the issue is vesting, you need to have the formalities lined up like ducks in a row, bc a pretty strong aspect of common law was that there is no "legal" (although there might be some equitable issues) enforcement of an incomplete gift. A pardon seem as analagous to an Executive gift as to anything, and all formalties would need to be in place at law, with the gift being a final and completed act, for it to be enforceable at law (again dispensing with equitable notions)

OTOH, who is to enforce that "at law" issue? And what is the basis for standing to object to the revocation of an act of grace?

Oh well - I'll drop it. It's not that important one way or the other - bc it will be what it will be. It doesn't really impact what will happend to the Bush criminals in this administration bc I don't think Obama has anything other than tea and crumpets in mind for them and we've pretty much imperialized the Presidency now to where he doesn't really have to worry about the law, for his administration or prior ones. He can do what he damn well pleases and if he decides to ever exercise any self restraint, it will only be due to noblesse oblige -not to a rule of law. Still, even with the law and Constitution being relatively unimportant these days, other than for political usues, it would be nice to see more flesh on the pardon aguments being tossed around.


On re-reading the sequence of posts I think we are speaking the same language.

1. We are looking at what was historically an exercise of the Royal prerogative of mercy. The King cannot be compelled to exercise this prerogative, one can petition for it, but there is no legal right to it. So the petition, if successful, results in a grant, and to this day the successor presidential power is often couched in terms of "a grant of clemency".

2. Voluntary grants have to be evidenced and the Anglo-Norman common lawyer would look to the mechanism of the day - a document under seal - because what one volunteers to do under seal can be enforced at law even if unsupported by consideration.

3. English law has of course moved on since the 13 colonies abandoned their allegiance to the Crown. Since the Sovereign only acts on the advice of ministers, judicial review in respect of prerogative powers such as that of mercy will lie against the minister advising the Crown - see the Court of Appeal decision in R v Secretary of State for the Home Department ex p. Bentley [1993] EWHC Admin 2 (07 July 1993). Bentley's case was the culmination of a long campaign relating to one of the last trials for capital murder in England. Summary details can be found on Wikipedia. The pardon appeal concerned the issue of a posthumous pardon. Bentley's conviction was eventually set aide by the Court of Appeal Criminal Division see: R v. Derek William Bentley (Deceased) [1998] EWCA Crim 2516 (30th July, 1998) one of the seminal cases for those such as I who believe that capital punishment is unconscionable in a civilised society.

4. That was not the law of England as it was understood at the time of the separation of the Colonies - then the only noticed exception in the authorities I have found i relation to the grant of a pardon procured by fraud (widely framed). But the barbarity of the penalties prescribed by law in Tudor or Stuart times, particularly as regards cases of Treason, probably had something to do with the doctrine that pardons could not be set aside once they had vested, but much more probably the concern was to have legal certainty as regards land tenure. A pardon removed the attainder of the pardoned. His estate was no longer forfeit to the Crown, he recovered the capacity to make a will. Imagine the chaos if a great landowner's transactions could be set aside - possibly years afterwards.

5. If one considers the grant of a pardon as an act of mercy, the nearest analogy would be a charitable grant of a legal estate in land - there were many of these - even in the late 19th and early 20th centuries and they still cause problems for conveyancers - for example many benevolent persons made grants of land to municipalities for the laudable purpose of providing schools but with reversion provisions if the use changed and that quite often creates problems if the municipality wants to change the use of or dispose of the land, particularly if its legal department forgets to dig out the original deeds!

6. I agree with you that it is hard to discern what Bart terms "a liberty interest" in a pardon. An accused has a right to a fair trial, the convict has his rights of appeal, but once exhausted, the criminal justice system has no more to offer. If the grant vests, it can be pleaded - it creates a new right where there was none before, which is why it must be strictly evidenced.

7. I would agree that it is for the executive to determine how the acts of the executive should be formalised, but I would hope the Courts would demand some formality in the interests of legal certainty - sovereigns have been known to jest, not to mention the Red Queen "sentence first - verdict afterwards" tendencies of the Bush administration.

8. It seems that many states in the USA have formalised the pardon process, I suppose by constitutional amendments and/or legislation. That is also true of Canada, of India, and many other common law countries and most would now consider the process open to judicial review.

9. I believe that many perceived deficiencies resulting from the rather ramshackle state of the US constitutional settlement, its justice system and its judicial appointments appointments system perhaps ought to be a subject for systematic reform. I would like to see the coming Obama Administration devoting some resources to such a process. That might be fitting for a former teacher of constitutional law.

"9. I believe that many perceived deficiencies resulting from the rather ramshackle state of the US constitutional settlement, its justice system and its judicial appointments appointments system perhaps ought to be a subject for systematic reform. I would like to see the coming Obama Administration devoting some resources to such a process. That might be fitting for a former teacher of constitutional law."
# posted by Blogger Mourad : 4:11 PM

With all the problems on Obama's plate, together with pre-emptive attacks in process from neocons and their ilk, "some resources" might divert too much attention with even further pre-emptive attacks. The question is "how much" resouces? Perhaps the "constitutional" academic community should be addressing this (beyond Sandy Levinson) such that all three branches of government can then address this need. My concern is that we end up with an improved Constitution and not a code.


The DPC prevents the state from arbitrarily denying a citizen a liberty interest without due process.

The purest form of a liberty interest under Due Process is in anything that would free a citizen from criminal punishment. For example, I have just drafted an appellate brief citing extensive precedent that my client enjoyed a liberty interest in a reduced criminal sentence that was arbitrarily denied him.

It would appear to be a very small step from that precedent to argue that a pardon eliminating a criminal sanction is also a liberty interest that attached when announced and cannot be arbitrarily withdrawn for unrelated reasons such as to avoid political embarrassment from the fact that the pardon recipient's family contributed to the GOP.

The key issue is when the pardon became operative. It is possible that a court will observe the traditional formalities. However, the Constitution does not require these formalities and courts tend to rule on the side of a citizen's freedom over legal formalities.

" ... that my client enjoyed a liberty interest in a reduced criminal sentence that was arbitrarily denied him."

I am curious as to how little Lisa's bro's client was so "arbitrarily denied." Did this go beyond discretion? Some facts, alleged or otherwise, might be helpful. For example, did the judge (assuming a judge was involved) take the position that as a matter of law the "reduced criminal sentence" was not applicable or available to the client? If so, wouldn't a routine appeal address this without the need of focusing upon a "liberty interest"? Pardon me, but it seems to be quite a presumtuous precential leap from little Lisa's bro's brief to precedents for the unbegging of a pardon.

This comment has been removed by the author.


The small step was from the extensive precedent that folks have a liberty interest in a reduced sentence, not my humble appeal.

LSR Bart wrote:-

"The purest form of a liberty interest under Due Process is in anything that would free a citizen from criminal punishment."

That sentence, as drafted, seems to me the most utter tosh. Methinks the word "anything" is apt to include assisting a felon to escape from lawful custody, or an accused on bail to flee to some other jurisdiction from which he cannot be extradited. It is apt also to include embracery of a juror, the manufacture of perjured evidence and a host of other acts tending to pervert the course of public justice.

Perhaps one may be permitted to hope for the client's sake that Bart has avoided infelicities of that sort in the appellate brief he says he has drafted for a client.


We were speaking about due process of criminal law, not the various felonies you rattled off in a snark.

Sometimes it takes an age for the penny to drop in the LSR brain.

As poor Bart may now appreciate, "due process" does not mean "anything goes" - it means "due process of law".

In that sense, the proposed recipient of the pardon in issue has already had due process: he has been tried, convicted and sentenced. If the pardon has vested, that arrests the execution and consequences of due process.

If it has not vested, then the intended recipient has nothing to complain of precisely because he has already received due process.

That is why I maintain that for so long as there is an executive pardoning power, there is advantage in the formalities of issue of a pardon being strictly adhered to. The advantage of a document executed under seal, delivered and accepted, is that its legitimacy and effect cannot be questioned.

If it has vested, and the benefit of it has been unlawfully with-held, then there is some authority to the effect that a decision to revoke that which has been granted is reviewable.

And since a pardon serves to arrest due process in that it violates the concept that the guilty should pay the prescribed penalty for their crimes, there is something to be said for the principle that nowadays pardons should be reserved to correct errors which have resulted in injustice and which cannot be remedied in any other way.

A pardon should most certainly not be dependent on the hazard of whether one has access to an attorney with friends in high places and the means to pay for his services, on whether one has relatives who have made major donations to a political party, or on whether one has been complicit in unlawful activity within an administration.

It is indeed the unreviewable discretion to grant pardons to those who might be said to be accomplices in unlawful activity while in public office (for example in relation to Iran Contra) as much as the suspicion that pardons can be procured by influence which has brought the unfettered US pardon power into some disrepute.

I have not delved into this issue as much as previous commenters appear to have done, but one thing occurs to me that I haven't seen mentioned here or anywhere else.

That is: if the Bush administration is -- in the case of Toussie -- put in the position of arguing that a pardon has to be "delivered" in order to be effective, then what implications, if any, does this have for the so-called "blanket" pardon(s) that have been discussed in the context of pardoning all of those who may face prosecution for crimes in connection with the Bush Administration's interrogation, detention, and surveillance projects?

As I recall, it was suggested that such pardons would cover classes of people and classes of offenses. How could such a pardon be properly "delivered"?

I'm with Mary. Where's the "no do-overs" clause?

HHL: How could such a pardon be properly "delivered"?

My vote's for some sort of state-appointed agent, preferably one with a security clearance/infrastructure capable of maintaining a secret list of such pardoned people.

PMS Chicago: Yes, but my understanding was that there would be no actual list of persons, only a description of a class of persons. I am too busy right now to look this up, but I specifically remember it being discussed in these terms on a number of sites (maybe even this one) by non-crackpot type persons, opining that this would, in fact, be within the scope of the president's pardon power. There was even an analogous case mentioned (pardoning former confederate soldiers, perhaps? something like that.)

There was even an analogous case mentioned (pardoning former confederate soldiers, perhaps? something like that.)

Johnson's pardon of confederate soldiers, Carter's pardon of draft-dodgers, etc.

What interests me even beyond the difficulty of delivery is the possibility that Bush himself could fall under the very category of people that are pardoned.

Class pardons - simple - by proclamation. Publish in the Federal Register and the Court takes judicial notice of the pardoned class.

Precedent - fords pardon of Nixon was by proclamation.

Semble, it would still be open to any pardoned person to reject the pardon and volunteer to stand trial.

Mourad said...

Sometimes it takes an age for the penny to drop in the LSR brain. As poor Bart may now appreciate, "due process" does not mean "anything goes" - it means "due process of law".

In that sense, the proposed recipient of the pardon in issue has already had due process: he has been tried, convicted and sentenced. If the pardon has vested, that arrests the execution and consequences of due process.

Glass houses. It is hazardous to one's credibility to opine on something of which one obviously has very little knowledge.

Every time the state proposes to take a liberty interest from a person, the person has the right to due process of law. That right is not short circuited if the person has received due process on a prior occasion concerning a different liberty interest.

For example, a person may indeed have received due process in pleading guilty to a criminal charge and receiving a reduced sentence of probation. However, if the state comes to court later, alleges that the person has violated probation and asks the court to impose a greater jail sentence, then the person has a right to another round of due process on the revocation of probation, even if she was previously found guilty of the underlying crime.

As to the subject at hand, a pardon or commutation is arguably analogous to a reduced sentence. If the pardon at issue became effective when announced, the recipient gains a liberty interest in that pardon. If the state seeks to withdraw the pardon, Due Process should require that the state prove that this liberty interest is not being deprived arbitrarily and is instead being withdrawn properly under the law. If the pardon has become effective, I do not see the legal basis to withdraw it. The political CYA reason would appear to be arbitrary.

Regarding due process for alleged parole or probation violations, see:

In some instances, perhaps most, there are statutes or regulations involved with parole and probation violations. Are there any statutes or regulations involved with Presidential pardons that go beyond the power stated in the Constitution? What might originalists say about this situation of withdrawal of a pardon? Would SCOTUS permit inquiry of the President of the reasons for withdrawal? Since a pardon is basically a "freebie," might the approach be similar to whether or not a "gift" was completed in determining whether it can be lawfully taken back? Extending the parole/probation violations due process to pardons may be a leap, not a short step.

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