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.
Two Ways to Apply for a Pardon
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.
Eight years ago, President Clinton ignited a firestorm with a pardon of financial fugitive Marc Rich. Representatives of Rich, like for Toussie, appealed their case directly to the White House. Prosecutors who had been working on the Rich case were stunned when Clinton granted the pardon without having the pardon attorney involved in a thorough review of the application.
Some accused Clinton of granting the pardon in exchange for a large financial contribution from Rich's ex-wife. Clinton vehemently denied the accusation.
But legal experts said the Toussie case, like the Rich case, provides new evidence that the system is in need of repair.
"The bureaucratic process for a pardon needs improvement," said Brian C. Kalt, a law professor at Michigan State University College of Law.
Kalt argued that one possible fix would be to ease Justice Department guidelines so that every application was eligible to go through the Office of the Pardon Attorney without the five-year waiting period. Such a process would cut out a direct appeal to the president.
"The pardon attorney gives the president political cover," Kalt said
But the Justice Department guidelines are in place in part to limit the already overwhelming number of pardons the office receives each year.
Others said they believe the president should do more to explain his thinking behind the pardon.
"I think people want more information from the president as to his thinking. A 'here's why' instead of just putting out a press release," said Ellen Podgor, a law professor at Stetson University College of Law.
"There will always be a certain unfairness to the pardon process when the president has the sole power to decide who is going to get clemency," Podgor said. But she said she is troubled that individuals who can't afford a lawyer are put at a distinct disadvantage.
"Is it a situation that we are seeing everyone on equal footing having the ability to apply?" she asked.
But Ruckman argued that through history the system had always been biased toward those with more direct access. He said a root problem is that modern presidents have used the pardon so sparingly. If the president chose to allow more pardons, and if more resources were given to the pardon attorney at the Department of Justice, the pressure on the system would be alleviated.
"Access to power has always been limited and biased, but if the number of pardons continues to decline, it will only exacerbate the problem," he said. "As it stands now, the perception is you hardly have a snowball's chance to get the pardon from the pardon attorney at the Department of Justice so you have to think of ways to try to bypass the system."
The pardon attorney does not have the staff or resources to handle all the applications they receive, he said.
"The Toussie case certainly suggests that there are major problems in the process for administering the pardon process," Love said. The White House needs to better coordinate with the Office of the Pardon Attorney on pardons, he said.
"There has been a breakdown between the Department and the White House, and the pardon attorney needs to get the authority, resources and respect it deserves to do its job," Love said.
Fratto argued that the process is not in need of repair, as evidenced by the many pardons that have been issued without controversy. He said because the president has the sole constitutional authority to grant a pardon, applicants should feel free to apply directly to the president and bypass the Justice Department.
"You do not want a situation where people feel they cannot approach the White House to petition for clemency when that power solely rests with the president," Fratto said.
Can Toussie Challenge?
Toussie's lawyers declined to comment on whether their client will attempt to challenge Bush's reversal of the pardon.
But Kalt said the administration's legal justification of revoking the pardon because Toussie did not receive an official warrant could be successfully challenged.
"If I were Toussie," Kalt said. "I would fight this."
"I can't see what more could be required than the president signing a document pardoning you, executing that document and informing you that you had been pardoned," he said.
Attention on pardons and commutations of prison sentences will only increase in the weeks to come. Several high-profile individuals, including former Illinois Gov. George Ryan, former Rep. Randy "Duke Cunningham and junk bond king Michael Milken, have petitions in front of the Bush administration.
And on Jan. 15, Eric Holder, President-elect Obama's nominee for attorney general will be grilled at his confirmation hearing for his role in the Rich pardon when he served as Clinton's deputy attorney general.