No Comment — December 26, 2008, 11:12 am

Is $40,000 the New Going Rate for Presidential Pardons?

Brooklyn real estate mogul Isaac Robert Toussie “scammed hundreds of poor, minority homebuyers” and got caught. He copped a guilty plea to defrauding the Department of Housing and Urban Development and got a “relatively mild” sentence of five months, without any duty to make restitution. Toussie then went about getting a presidential pardon in the time-honored way. First he hired the president’s former lawyer, Bradford A. Berenson of the firm of Sidley & Austin, to advise him in seeking a pardon. Then his father made donations totaling some $40,000 to the Republican Party or to Republican candidates. Just before Christmas, Toussie got a pardon. He did it on the cheap (the Marc Rich pardon involved a $450,000 donation to the Clinton library). As with the prior commutation that Bush gave to his advisor Scooter Libby, it doesn’t seem that the Justice Department or the Pardons Attorney knew anything about it.

But as soon as the papers began to fill with the sordid dealings underlying the Toussie pardon, the president came down with a severe case of pardoner’s remorse. Bush hadn’t reckoned with the details emerging, at least not so quickly. He purported to rescind the pardon. Rescind a pardon? Actually, pardons are supposed to be irrevocable–binding once granted. But Constitutional doctrine and tradition count for very little for Bush. As the White House explains, the pardon “hadn’t been fully executed,” so it could be called back. It had been signed; Bush means that it had not been delivered or accepted. These final steps are in theory necessary to make the pardon effective.

This recalls the historical moment that Friedrich Schiller turned into a dramatic high point in the play Mary Stuart–the Scottish queen’s execution. In Act V, Queen Elizabeth flies into a rage on learning of her cousin’s beheading, saying that, though she had signed the warrant, she had not authorized its delivery and performance. It was a way for the Virgin Queen to cast off blame for her own act and place it on others. And so it is with Bush.

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.

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