Thursday, December 25, 2008


President Bush issued some pardons on December 23, but on December 24, he announced that he was revoking one of them that had caused some outcry and submitting it to his Pardon Attorney for further study. A Justice Department official stated that the President can pull back a pardon until it is delivered to the person who requested it. Is that right?

Amazingly enough, it seems that it is. In United States v. Wilson, 32 U.S. 150 (1833), the Supreme Court stated that "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance." So the pardon must not only be delivered, but accepted by its subject, before it takes effect. The Court explained that pardons may be conditional, and the subject might prefer to reject the pardon rather than accept the conditions.

The case, and subsequent cases citing it, have been directed more to the question of whether the pardon must be accepted, than to whether it must be delivered, before being effective. Every now and then the subject of a pardon decides he'd rather not be pardoned. So the acceptance question comes up. It's tough to find a case in which the subject was happy to accept the pardon but the issue was whether the pardon had been delivered.

Still, Wilson says that the pardon must be delivered. So assuming that the President had signed the pardon, but that it had not been delivered, it would appear that he still has the power to pull it back. Kind of a silly rule -- it's hard to see what it can lead to besides the kind of embarrassment that's occurring right now. If the President wants to check whether a pardon would lead to a public outcry he could always announce a day or two in advance that he was thinking of pardoning somebody, and see what happens. Once the President signs the pardon, that should be it. But apparently it's not.

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