Since President Bush granted and then unexpectedly revoked a controversial pardon last week, legal experts are furiously debating whether the process surrounding the president's constitutional power to pardon is broken, biased or both.
On Dec. 23, Bush pardoned Isaac R. Toussie, who had pleaded guilty to mail fraud and lying to the Department of Housing and Urban Development and served five months in prison. The presidential action effectively wiped clean Toussie's conviction. But then the next day, on Christmas Eve, the White House released a cryptic statement that "information" had "come to light" that caused the president to change his mind.
White House spokesman Tony Fratto said the new information included media reports regarding new details of the original infraction, an unrelated lawsuit and the fact that Toussie's father had contributed $28,500 to the Republican Party earlier in the year.
"The contribution had no impact on the president's initial decision," Fratto said Tuesday. "But the donation created an appearance of impropriety that would question the integrity of the pardon review process."
Bush's sudden turnaround prompted critics to wonder why the president hadn't been better informed about the details of Toussie's case and whether other cases could be similarly jeopardized.
"There needs to be a radical restructuring and restaffing of the pardon process," said Margaret Love, who led the Office of the Pardon Attorney at the Justice Department from 1990 to 1997.
There are two very different routes an applicant can take to have his or her pardon application reviewed.
The most common route is through the Office of the Pardon Attorney at the Department of Justice. Typically, the pardon attorney works through an application and then forwards a recommendation to the president.
But the Office of the Pardon Attorney is overwhelmed with requests, and per Justice Department guidelines, can normally process an application only five years after the end of any imprisonment.
Out of fear of delay, those seeking clemency often attempt an end-run around the Department of Justice with a direct appeal to the president. Such an appeal usually requires a well-connected attorney who has the ability to get the attention of the White House counsel.
Toussie, realizing that Justice guidelines would preclude immediate consideration of his appeal, chose to appeal directly to the president. He hired a well-known Washington attorney, Bradford Berenson, who had previously worked in the White House counsel's office under Bush.
The strategy worked, for a day. In revoking the pardon, Bush specified that Toussie would have to go through the Department of Justice, which could permanently delay the pardon.
Berenson issued a statement saying, ""Mr. Toussie looks forward to the pardon attorney's expeditious review of the application and remains confident that the pardon attorney will agree with the president and the White House counsel." He declined to comment further.
"It was disorderly," pardon expert P.S. Ruckman said of the Toussie application. Ruckman studies the history of presidential pardons and runs the popular Pardon Power blog.
But Ruckman said controversy has always dogged pardons.
"It's been difficult from the beginning to impose order on the process," he said.