Opinion Forum

Presidential Pardons Redux

January 26th, 2009

A couple of weeks ago, Kevin posted an article at Preemptive Karma on the pardon powers of U.S. presidents and state governors. He made the point that

…a pardon effectively skirts the entirety of state/federal criminal law, including the provisions for righting a wrongful conviction. And the citizenry have absolutely no recourse…other than a constitutional amendment.

That started me thinking about President Bush’s revocation of a pardon the day after he granted it. Then I wrote Presidential Pardons, citing a discussion of the “power to unpardon” in a column in The Washington Post by George Lardner, Jr. Lardner stated that a potential Supreme Court decision as to whether a pardon could be revoked may depend on the issue of whether it had actually been delivered to the recipient, claiming that there was precendent on the issue.

Now comes Brian C. Kalt, in a column again in The Washington Post, arguing that a pardon cannot be revoked. In his view, “Lardner is wrong at nearly every turn.” Kalt, an associate professor of law at Michigan State University, wrote:

Once issued, a pardon is a pardon. That’s that. Using pardons, the president of the United States has the power to lift criminal consequences from people. The president does not, however, have the power to reimpose them unilaterally, which is what a pardon revocation would do. As a result, Bush could not–and did not–argue that he could revoke Toussie’s pardon. Rather, he would have had to establish that Toussie was never really pardoned in the first place.

It would be hard to make that case. As president, Bush signed and sealed a master warrant that included Toussie’s name and stated: “After considering the applications for executive clemency…I hereby grant full and unconditional pardons to the following named persons.” The Justice Department announced the pardons to the world. The recipients (or their lawyers) were contacted by phone, told that they had been pardoned and accepted the pardons. This sounds quite final.

That takes me back to the question I posed in the earlier post–if the power to grant a pardon is absolute, is not the pardon immune from revocation? Kalt obviously thinks so, and his argument is persuasive.

I hope this question does end up before the Supreme Court. The outcome will be very interesting.

Articles written by Tom Carter
Tags: Law
Categories: News, Politics | Comments (5) | Home

5 Responses to “Presidential Pardons Redux”

Kevin | January 26th, 2009 at 5:33 pm

I still maintain that the Constitution vests the authority 100% in the president rather than in the pardon, and thus the president who issued the pardon has the full authority to revoke it. The only limitation on that is the provision that this supreme authority is only valid while in office. Once out of office then those pardons are irrevocable because the Constitution grants absolutely nobody any authority whatever to revoke them.

I very much agree that it’s an interesting question and I’d like to see the SCOTUS take it up. But I’d be surprised if they ruled that the authority is in the pardon itself and thus none revokable.

Tom | January 26th, 2009 at 9:04 pm

Maybe I’m hung up on the word “absolute.” If the power to pardon is absolute, how can it be revoked, even by the president who issues it? And I think Kalt makes a good point: “…the president of the United States has the power to lift criminal consequences from people. The president does not, however, have the power to reimpose them unilaterally, which is what a pardon revocation would do.”

Kevin | January 27th, 2009 at 7:27 pm

Well, I don’t think that’s unreasonable. The difference seems to be what we’re each crediting with being absolute rather than where absolutism is part of the equation.

BTW, have you noticed that between our two blogs you and I appear to be on some sort of short list of Americans fascinated by this? In any case, it’d be nice if the SCOTUS took this up if for no other reason than to flesh it out for us.

Kevin | January 27th, 2009 at 7:28 pm

Oops. “where” = “whether” in that first sentence.

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