Bush Giveth And Then Taketh Away

(10 am. – promoted by ek hornbeck)

cross posted from The Dream Antilles

How very awkward.  And how very typical.  On December 24, Preznit Bush suddenly became concerned about appearances and revoked a pardon he gave New York real estate developer Isaac Toussie the day before, after reports surfaced that Toussie’s family gave almost $40,000 to Republicans.

Of course, the White House mouthpiece immediately  took the story through a muddy spin cycle:

White House press secretary Dana Perino said neither Bush nor counsel Fred Fielding was aware of the GOP contributions from the father of Isaac Robert Toussie, who had been convicted of mail fraud and of making false statements to the Department of Housing and Urban Development. Perino said Bush had also been unaware of other aspects of the Toussie case that were revealed in news reports yesterday.

“Looking at the totality of the case, more could have been described to the president,” Perino said. “The political contributions certainly were not known. It raises the appearance of impropriety, so the president prudently decided not to go through with the pardon.”

Now that is one gigantic humdinger for those with short memories.  “More could have been described to the president.”  This is the man, you will recall, who as Governor decided to reject Texas death row pleas for clemency on extremely short, incomplete, flawed memos from Alberto Gonzalez that routinely omitted information about possible innocence or rehabilitation while incarcerated.  As The Atlantic wrote in 2003,

As the legal counsel to Texas Governor George W. Bush, Alberto R. Gonzales-now the White House counsel, and widely regarded as a likely future Supreme Court nominee-prepared fifty-seven confidential death-penalty memoranda for Bush’s review. Never before discussed publicly, the memoranda suggest that Gonzales repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand

So, yeah, the Preznit could have known more about Toussie.  But it didn’t matter before that the Preznit (as governor) regularly denied clemency on inaccurate and incomplete information, not when 152 people’s actual lives were on the line, and that “more could have been described to the Preznit” when he made those decisions. Those denials of clemency (and the resulting 152 executions) somehow didn’t have an “appearance of impropriety.”  To the contrary, appearances didn’t matter at all to George W. Bush.  Take Karla Fay Tucker as an example:

In the year following her execution, conservative commentator Tucker Carlson questioned Governor Bush about how the Board of Pardons and Parole had arrived at the determination on her clemency plea. Carlson alleged that Bush, alluding to a televised interview which Karla Faye Tucker had given to talk show host Larry King, smirked and spoke mockingly about her:

In the weeks before the execution, Bush says, “A number of protesters came to Austin to demand clemency for Karla Faye Tucker.” “Did you meet with any of them?” I ask. Bush whips around and stares at me. “No, I didn’t meet with any of them”, he snaps, as though I’ve just asked the dumbest, most offensive question ever posed. “I didn’t meet with Larry King either when he came down for it. I watched his interview with Tucker, though. He asked her real difficult questions like, ‘What would you say to Governor Bush?'” “What was her answer?” I wonder. “‘Please,'” Bush whimpers, his lips pursed in mock desperation, “‘don’t kill me.'” I must have looked shocked – ridiculing the pleas of a condemned prisoner who has since been executed seems odd and cruel – because he immediately stops smirking.

That wasn’t an “appearance of impropriety.”

And then we have the question whether the Preznit can revoke a pardon once he’s actually granted it.  I have seen no precedent that a pardon once granted can be revoked:

Under the Constitution, the president’s power to issue pardons is absolute and cannot be overruled – meaning he can forgive anyone he wants, at any time.

Perino said she did not know of another instance of a pardon reversal in “recent memory,” but that the White House couldn’t say for sure it never had happened before.

Source.  In other words, once again Bush has taken the executive branch into legal areas it’s never blundered into before.

There is, of course a reason why the White House spin cycle waffles around on the topic of revoking the pardon, claiming instead that “the president decided not to go through with the pardon.”  Perino would have you believe that the pardon was still in process, that it hadn’t actually been granted yet.  But that apparently is not the case.  Counsel for Toussie, who knows the process and was remarkably successful at it, apparently thought the pardon was a done deal:

Berenson said in a statement that Toussie “is deeply grateful that both the Counsel to the President and the President himself found Mr. Toussie’s pardon application to have sufficient merit to be granted.”

 And obviously, the Preznit doesn’t have to revoke a pardon if he hasn’t granted one.  Ooops.

Why does that matter?  It’s a matter of due process of law.  When the government has given somebody something, whether that something is a right or a privilege, if taking it away imposes a grievous loss, there has to be procedural due process involved in the taking.  Examples abound.  If someone receives certain government benefits, s/he is entitled to a hearing before those benefits can be taken away.  If someone is on parole, s/he is entitled to a hearing before parole can be revoked and taken away.  The same for probation.  Once a conditional liberty has been granted, it requires procedural process of some kind to end it.  On the other hand, if the decision to grant parole has not actually been made, and the process of evaluation is continuing, no procedural due process may be required.  So, if the Preznit actually issued a pardon, the recipient is entitled to a hearing before it can be taken away. Did the Preznit actually grant the pardon?  Apparently he did.

How ugly.  This preznit has been an expert at exercising powers he doesn’t actually have (examples include torture, signing statements, domestic surveillance, illegal extraditions, etc).  Here’s a power he actually has, the pardon power, an unreviewable power of the executive, and he cannot exercise it properly.  He grants it, he illegally revokes it.  He giveth, he taketh away.  

Failure, thy name is Bush.

3 comments

    • davidseth on December 26, 2008 at 5:21 am
      Author

    Tips for the Fifth Amendment.

    How remarkable.  It’s Christmas night, we have less than a month of this Preznit left, and he finds a way to mess up the one, unreviewable executive power he actually possesses.

    Can we please impeach him and his gang?

    Thanks for reading.

    • Edger on December 26, 2008 at 6:11 am

    that pardons might be revocable, David. Not a certainty, but possible, it looks like. It appears that Bush had a legal opinion that it could be done.

    Pardon Me, Congress?

    by David Swanson, October 23, 2008

    …Congress should hold hearings, and hold them as soon as possible, but not just to speechify, rather to take serious steps to prevent something brand new in American government: a president pardoning himself and/or pardoning his subordinates for crimes he instructed them to commit, crimes for which they have, in most cases, not yet even been charged, much less convicted and sentenced.

    The unconstitutionality of self pardons is discussed at length in “Pardon Me? The Constitutional Case Against Presidential Self-Pardons,” by Brian C. Kalt in the Yale Law Journal, December 1, 1996: http://www.jstor.org/pss/797310 Kalt gives an argument based on original intent and the English history that informs it, text and structure, case law, and the broader precedential principles of self-judging and the rule of law.



    The belief has taken hold in Washington, D.C., that the presidential pardon power cannot be restricted other than through amendment of the Constitution. But part of the reason for that belief is that few people heretofore have considered the outrageous possibility of a president pardoning himself. A careful analysis, I believe, would lead to the conclusion that Congress is completely within its rights to legislate a ban preventing the presidential pardon power from being distorted to include the power to self-pardon the president, or to pardon any staff or contractors of the executive branch, including the vice president, for crimes authorized by the president.

    Of course, such legislation would be vetoed by Bush, but it could be passed during the next Congress, and it could be written to retroactively revoke Bush’s illegal pardons. After all, we recently retroactively legalized massive violations of the Fourth Amendment and statutory law by telecommunications companies. Surely, we can retroactively revoke pardons. In fact, according to press accounts in 2001, President George W. Bush seriously considered, himself, revoking former President Bill Clinton’s controversial pardon of Marc Rich, but ultimately chose not to do so despite the advice from his lawyers in the Justice Department, advice that Congress could subpoena next year if it hasn’t all been shredded. Of course, this suggests the possibility of lobbying President Barack Obama to revoke invalid pardons made by Bush.

    Another course that Congress could take right now would be to introduce and support legislation creating a Constitutional Amendment to restrict self-pardons and pardons of subordinates for crimes ordered by the president. Such an amendment would not be ratified quickly, but it would raise the level of potentially bipartisan opposition to Bush pardons, which might discourage them. At some point, surely, the Republican Party is going to decide that one more nail in its coffin is too many.

    The best approach of all, however, would be one that Bob Fertik has proposed, although I guess the framers of the Constitution beat him to it. The House could impeach each top official likely to receive a preemptive pardon from Bush, or impeach them once they receive the pardons, whether or not they are still in office, and whether or not President Obama has tapped them to stay on. First on the list would be I. Lewis “Scooter” Libby whose sentence Bush has already commuted.

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