Just as background for those not entirely clued in yet, President Bush issued a pardon to 19 individuals who committed a variety of federal offenses. This is typical for a president about to leave office. And the watch has been on as the Bush presidency winds down given the number of high profile folks (Scooter Libby) who have filed for a pardon.
A couple of important points first before I describe the fiasco that happened in as little as 24 hours. The president's power to pardon is absolute. It can be given by the president to anyone who crosses federal law, or may at some point in the future be in trouble with the law (Ford's pardon of Nixon, for instance). There is a process in place inside the Department of Justice's Office of the Pardon Attorney to streamline the thousands of requests for pardon, clemency, etc. that the president receives during his time in office. The process is also in place to give the whole transaction an air of propriety, to make sure that the president is not handing out pardons to the highest bidder, for example. But in the end, it is the president's decision to make.
The second important, and interrelated point, is this administration's desire to enhance and increase the powers of the presidency. If you have listened to Cheney's farewell tours recently, you have heard a great deal about ceding stronger powers to future presidents than those powers in existence during Bush's time in office. This meant keeping Congress out of Article II and apologizing to no one for actions--even extraordinary ones--taken by President Bush or Vice President Cheney.
Now the fiasco. On December 24, President Bush had staff (Press Secretary Dana Perino, to be exact) break the news that one of the pardons was coming back. Here is what Ms. Perino had to say about the grant given to "Mr. Isaac R. Toussie":
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.
Mr. Toussie was a one time a high dollar real-estate developer in New York who spent five months in 2003 in a federal jail for "using false documents to get federally insured mortgages" in 2001 and for fradulently "selling land to Suffolk County at twice the appraised value" in 2002.
What happened in the matter of just a couple of hours between the 23rd and 24th? Was it the red flag of granting a pardon to someone who jumped ahead of the line--ahead of individuals seeking pardons for offenses committed decades ago? No, not that. What came to light was information that Mr. Toussie's father, Robert Toussie, and his wife, Laura, had given a sizeable amount of money to Republican candidates and the Republican Party in the 2008 election cycle. This generated a great deal of heat (Bush may very well green light the pardon in the end, but if so, he should have taken a note from Clinton and granted the pardon as he was heading to the inaugural ceremonies), which caused the administration to look positively foolish. The White House pointed fingers at the Department of Justice while the Department of Justice pointed fingers at the White House. News reporters scrambled to find anyone who knew anything about pardons to get at an explanation of the process, but more importantly to provide answers to the all important question: Can a president do that? Can he publicly announce a pardon and then turn around and go back on his word? This gave 15 minutes of fame to obscure political scientists and legal scholars who have dedicated their lives to the Presidential Pardon (to you reporters who are reading, my money is on Dr. Mark Morris, whose very fine dissertation is pubicly available and is chock full of all sorts of goodies surrounding the Pardon).
While everyone is focusing on the trees, let me step back and talk a bit about the forest in this story. First, while it may have been helpful to have been a contributor to Republicans, the dollar amount at stake here is not really eyebrow raising. It isn't what we might think of when someone uses wealth to gain a foot in the door. So if money wasn't necessarily a primary factor in moving Toussie's application up the list, then what was it? I would shine the light on Toussie's attorney during this process. Mr. Toussie hired Brad Berenson, an attorney and partner at the prestigious DC law firm Sidley Austin LLP. For those who don't know Mr. Berenson, prior to his gig at Sidley Austin, he was an attorney in the White House Counselor's Office during President Bush's first term. Thus this particular decision was made inside the White House and outside the normal process in the DoJ. More than circumstantial evidence if you ask me.
The second "big picture" item of interest is how this particular action contradicts the Bushies stated goal of leaving the powers of the presidency in pristine shape. Recall that the power is absolute and a fairly awesome power in its own right. What has happened to this absolute power when the precedent gets set that a president will be forced to rescind because the public heat from the action has gotten too hot? What possible penalty does Bush face by riding the storm out? He can't be re-elected? Are we to believe that he is so caught up in his legacy that he may threaten presidential prerogatives because his actions may cause presidential historians to stroke their chins? If that is the case, I think there is sufficient evidence to invoke the 25th Amendment!
President Bush is similar to the Energizer Bunny--He just keeps giving and giving and giving....
