The Bush Pardon Obama Needs to Deal with

Two days before Christmas, President Bush pardoned Isaac Robert Toussie, who had been convicted of fraud following an enormous real estate scam. Toussie’s clemency application had hit a dead end with the Pardon Attorney’s Office, the president’s filter designed to help protect him from making a mistake. Even so, Touisse’s attorney managed to get the request to Bush personally, via White House counsel Fred Fielding. A day after giving it, Bush “degifted” Toussie by revoking his pardon.

This “unpardon” was triggered in part by intense public interest. Toussie’s story struck a nerve: a mortgage scammer who had allegedly preyed on poor homeowners needed his rich father to get him out of trouble. New York-based newspapers found out that the senior Toussie had gone so far as to donate $28,500 that year to the Republican National Committee.

As the situation unraveled, Bush took back the pardon. Then, the story really took off: headlines declared “Bush Revokes Pardon of GOP Donors’ Relative,” and “Pardon Lasts One Day for Man in Fraud Case.”

In our new media environment, a fishy clemency decision pretty much guarantees a feeding frenzy, and our last few presidents have provided some buzz-worthy moments while exiting the White House.

George H.W. Bush pardoned Caspar Weinberger and five other Iran-Contra figures, thereby avoiding the possibility of having to testify at Weinberger’s trial.

Bill Clinton pardoned a key Whitewater figure, his half-brother, and dozens of others – some of whom had not been properly vetted by the normal process. A media investigation discovered that one lucky pardon recipient, fugitive Marc Rich, had an ex-wife who had donated a half million dollars to Clinton’s presidential library in an ongoing clemency campaign.

Bush himself crossed the line by commuting the prison sentence of “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, in July 2007. In his final days in office, though, he used his pardon power only to reduce the punishment of U.S. Border Patrol agents (and media cause célèbre) Jose Compean and Ignacio Ramos.

Two observations: First, whenever President Obama decides to exercise the pardon power, he would be wise to trust the Office of the Pardon Attorney to do its job – recommending clemency (or not) based on a thorough investigation – before acting. A presidential pardon granted outside the administrative apparatus is rare and attracts unwanted media attention for that reason. Better to wait for the Pardon Attorney’s recommendation, be cautious and avoid public embarrassment.

Second, President Obama should start planning now for Toussie to challenge his “unpardon” in court. It is unclear how – or if —a pardon once granted can be taken away by the president. At the very least, there needs to be a bright-line rule in this area, as none currently exists.

If Toussie sues, President Obama will have to tie up that loose end somehow, and it won’t be easy. Health care reform, two wars and the weak economy are taking up most of the President’s time. He is unlikely to pardon the situation away, but he should not ignore it either. The case should proceed to trial – not so much for Toussie, but to clear up this murky area of the law for future clemency decisions by Obama and his successors.