# Ooops! Can a Presidential Pardon Be Rescinded? **URL:** \ **Category:** Great Debates\ **Created:** [December 24, 2008, 11:33pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604 "2008-12-24T23:33:07Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [December 26, 2008, 3:14am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/21 "2008-12-26T03:14:06Z")
I’m skeptical whether it’s possible to reverse a pardon. If a President can reverse himself, what’s to stop a future President from reversing the pardons of his predecesors? And just because it happened 24 hours ago doesn’t make any difference. The Constitution doesn’t have a 24 hour “whoops-a-daisy” grace period on unwise pardons. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [December 26, 2008, 3:24am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/22 "2008-12-26T03:24:33Z")
> [@Squink](#): > > Perhaps it is the “appearance of impropriety” raised by papa Toussie’s $28,500 “donation” to the RNC? > > [here](http://www.google.com/hostednews/ap/article/ALeqM5gNbZJtwBki4XVeyI-6zGGYgDJZBAD959DLU80) I’m missing the “impropriety” bit. Presidents often pardon people we wish they hadn’t and usually I figure it is for favors done and rarely because there was a miscarriage of justice. I thought the Presidential pardon was absolute. If someone walked into the White House, handed Bush $100K and Bush wrote up a pardon I do not think there is a damn thing anyone can do about it. Presumably Congress could impeach the President for such a thing which is why they always wait till they are about to leave office to pardon the scumbags. Congress couldn’t impeach him before his term is up anyway. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 26, 2008, 3:46am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/23 "2008-12-26T03:46:23Z")
> [@](#): > > Another drawback of a pardon, some argue, is that it can be revoked by the grantor or possibly even a subsequent President under some circumstances [[link](http://transcripts.cnn.com/TRANSCRIPTS/0102/28/lkl.00.html.)]. If a pardon is revocable, then its value as a bargaining chip is obviously much lower. These arguments are based on an 1869 U.S. district court opinion called In re DePuy, which held that an undelivered pardon could be revoked by a subsequent President, but noted that a delivered pardon was not revocable. [Can the President grant immunity from prosecution? - The Straight Dope](http://www.straightdope.com/columns/read/2809/can-the-president-grant-immunity-from-prosecution) Here is DePuy: [Reports of Cases Argued and Determined in the District Courts of the United ... - Robert Dewey Benedict, Benjamin Lincoln Benedict - Google Books](http://books.google.com/books?id=0_E7AAAAIAAJ&printsec=frontcover#PPA307,M1) There’s also the acceptance doctrine to consider. See [http://boards.straightdope.com/sdmb/showthread.php?p=9704476](http://boards.straightdope.com/sdmb/showthread.php?p=9704476) ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [December 26, 2008, 7:27am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/24 "2008-12-26T07:27:39Z")
> [@NicePete](#): > > Wow. Since when is the Bush administration concerned about the appearance of impropriety? When the next item on the Republican agenda is sinking the Eric Holder nomination by screaming “Marc Rich” over and over again, perhaps? Tut-tutting over the Marc Rich pardon while Bush makes shady-looking pardons of his own might be too much cognitive dissonance for even the press to swallow. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [December 26, 2008, 3:57pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/25 "2008-12-26T15:57:37Z")
> [@Whack-a-Mole](#): > > Congress couldn’t impeach him before his term is up anyway. No but they could punish him in other ways. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 26, 2008, 4:24pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/26 "2008-12-26T16:24:27Z")
> [@The\_Tao\_s\_Revenge](#): > > No but they could punish him in other ways. such as? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 26, 2008, 4:34pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/27 "2008-12-26T16:34:58Z")
> [@Northern\_Piper](#): > > such as? They could impeach him after his term expires, although it’s debateable how much of a punishment that would be. [http://boards.straightdope.com/sdmb/showthread.php?p=10525732#post10525732](http://boards.straightdope.com/sdmb/showthread.php?p=10525732#post10525732) ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [December 26, 2008, 9:23pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/28 "2008-12-26T21:23:13Z")
> [@Duckster](#): > > \*\*Ooops! Can a Presidential Pardon Be Rescinded? > \*\* So long as it is rescinded before the suspect/convict calls “No backsies!” ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [December 27, 2008, 1:06am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/29 "2008-12-27T01:06:31Z")
> [@BrainGlutton](#): > > So long as it is rescinded before the suspect/convict calls “No backsies!” A clear, succinct response. Thank you. It made my day. If I were eating a pretzel at the time, I might have choked. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [December 27, 2008, 5:41pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/30 "2008-12-27T17:41:32Z")
Here’s a good article suggesting that Bush apparently did go through all the formal steps of issuing a pardon, and that it shouldn’t be revocable. [http://www.concurringopinions.com/archives/2008/12/toussies\_pardon.html#comments](http://www.concurringopinions.com/archives/2008/12/toussies_pardon.html#comments) I agree with the consensus that it’s probably impossible to revoke a pardon once issued-a president has the power to pardon, not the power to make conduct punishable after the fact (or after a pardon resolves that that conduct shall not be punished). Further, I can’t think of any reasoned distinction that would allow this pardon to be revoked, but wouldn’t allow Obama (or any other president) to revoke any of Bush’s (or indeed any prior) pardon he doesn’t like. And if pardons can be revoked, they’re much less powerful-as they’re only valid as long as the president agrees with them. IANAL ---
**Author:** ![Greg\_Charles](https://avatars.discourse-cdn.com/v4/letter/g/839c29/32.png) [@Greg\_Charles](https://boards.straightdope.com/u/Greg_Charles)\ **Post date:** [December 28, 2008, 3:16am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/31 "2008-12-28T03:16:13Z")
> [@elucidator](#): > > Yeah, and 28K ain’t squat to the Bushes and the Prescotts. Find that much chump change in the sofa. They got whole clubs of guys called “Pioneers” or “Frontiersman” or “Goat Fletchers”, guys who personally raise 100K, 250K, and so on and so forth. So if there is perfidy afoot, and I’m inclined to believe it, it’s likely not about the money. I think you mean “goat felchers”. A fletcher is someone who makes arrows. And goat arrows …? Well, that’s just disgusting. However, I agree with the point that a measly 28K doesn’t buy a pardon. So why _did_ Bush decide to pardon this guy? 😕 ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [December 28, 2008, 4:29am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/32 "2008-12-28T04:29:33Z")
Unless getting your [picture taken shaking hands with the president](http://rawstory.com/news/2008/White_House_embarrassment_rises_with_donor_1227.html) is more common than I think it is, there was some backroom dealing going on here. Friend of a friend type shit. Maybe Toussie went to school with that white house lawyer he hired or something, or got a hint as to where 28K could do him the most good. It’s not necessary to bribe the GOP or the president here, Toussie merely had to write a check that pleased _someone_ with appropriate influences. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 29, 2008, 12:12am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/33 "2008-12-29T00:12:46Z")
> [@whorfin](#): > > Here’s a good article suggesting that Bush apparently did go through all the formal steps of issuing a pardon, and that it shouldn’t be revocable. > > [concurringopinions.com](http://www.concurringopinions.com/archives/2008/12/toussies_pardon.html#comments) > > I agree with the consensus that it’s probably impossible to revoke a pardon once issued-a president has the power to pardon, not the power to make conduct punishable after the fact (or after a pardon resolves that that conduct shall not be punished). > > Further, I can’t think of any reasoned distinction that would allow this pardon to be revoked, but wouldn’t allow Obama (or any other president) to revoke any of Bush’s (or indeed any prior) pardon he doesn’t like. And if pardons can be revoked, they’re much less powerful-as they’re only valid as long as the president agrees with them. I think that’s probably right, although, Kalt concedes, Ruckman’s point that (unlitigated) historical precedent is against us. Ruckman itemizes historical cancelled pardons here: [▶ PowerBet | 6 Bet — Get a 6%⚡Bonus 2026](http://pardonpower.com/2008/12/can-president-revoke-pardon-he-has.html) and here: [▶ PowerBet | 6 Bet — Get a 6%⚡Bonus 2026](http://pardonpower.com/2008/12/on-revocation-of-pardons.html) ---
**Author:** ![BJMoose](https://avatars.discourse-cdn.com/v4/letter/b/5fc32e/32.png) [@BJMoose](https://boards.straightdope.com/u/BJMoose)\ **Post date:** [December 29, 2008, 2:47am UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/34 "2008-12-29T02:47:25Z")
> [@Gfactor](#): > > They could impeach him after his term expires, although it’s debateable how much of a punishment that would be. [http://boards.straightdope.com/sdmb/showthread.php?p=10525732#post10525732](http://boards.straightdope.com/sdmb/showthread.php?p=10525732#post10525732) Couldn’t they yank his pension and other post-presidential perks? Some have suggested that Nixon opted for resignation over impeachment so that he could keep the goodies. > [@Greg\_Charles](#): > > I think you mean “goat felchers”. A fletcher is someone who makes arrows. And goat arrows …? Well, that’s just disgusting. > > * * * Well, _I_ think ' **luci** meant _goat-fetchers_. Course, the joke’s still on him cuz the proper term is _goat-ropers_. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [December 29, 2008, 5:25pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/35 "2008-12-29T17:25:07Z")
Jeez. This moron can’t fucking get _anything_ right. –Cliffy ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [December 29, 2008, 6:07pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/36 "2008-12-29T18:07:40Z")
So basically the GOP has cheerfully put its complaints about the Mark Rich pardon (to which, despite my general leftward leanings and Clinton backing, I am generally sympathetic) down the garbage grinder? The Holder nomination just got its rails greased? ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [December 29, 2008, 6:40pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/37 "2008-12-29T18:40:19Z")
> [@Gfactor](#): > > I think that’s probably right, although, Kalt concedes, Ruckman’s point that (unlitigated) historical precedent is against us. Ruckman itemizes historical cancelled pardons here: [▶ PowerBet | 6 Bet — Get a 6%⚡Bonus 2026](http://pardonpower.com/2008/12/can-president-revoke-pardon-he-has.html) > > and here: [▶ PowerBet | 6 Bet — Get a 6%⚡Bonus 2026](http://pardonpower.com/2008/12/on-revocation-of-pardons.html) The historical precedent is very limited, and is pretty old; however, those guys are both lawyers and experts, which I am not (and I’m sure some of what I post here is drawn from their thoughtful discussion). I still think that the real problem with any argument of revocability is some level of finality-- most people arguing for revocability wouldn’t contend a pardon is revocable forever, but there’s no good justification for drawing the line anywhere. I also find great merit in the argument (brought up in comments to one of the posts in the discussion we link to) that there has to be some point when a pardon becomes effective-when a prisoner can take it into court and rightly contend that it entitles him to be released/not subject to the consequences of his conviction/free from prosecution. That’s (for lack of a better description), what a pardon IS. It is inherent in that concept that the pardon entitles the individual in question to be released/able to vote/avoid prosecution even if those holding him in prison/seeking to prosecute him would still like to do so. And at least in the context of the federal system, the executive is in charge of the prosecutorial power-and so if the pardon is revocable, it’s revocable by the same person who (at the margin) would control whether the pardonee is prosecuted. Hence, if the pardon is revocable, it has no effect if the executive doesn’t like it-and as far as I understand, that’s just plain inconsistent with what a pardon is. I also like directly contrasting to the president’s power (as the head of the executive branch), to simply order that no prosecution be pursued (at the margin, as Nixon demonstrated, through firing those who won’t comply)–that also provides protection from prosecution, but only so long as the president is on your side and has the political capital to continue to ensure no federal prosecution is brought (as Nixon discovered soon thereafter). That gives a similar effect (at least as to those at risk of prosecution), but has no permanence beyond the will of the executive-and would hence be (in principle) identical to a revocable pardon–which to me, is why a pardon has to mean more-to read it as revocable would be to read it out of the president’s powers (as it applies to those at risk of prosecution) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 29, 2008, 7:16pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/38 "2008-12-29T19:16:08Z")
> [@whorfin](#): > > The historical precedent is very limited, and is pretty old; however, those guys are both lawyers and experts, which I am not (and I’m sure some of what I post here is drawn from their thoughtful discussion). I still think that the real problem with any argument of revocability is some level of finality Right. I agree. What you wind up with if pardons are revocable is future adminstrations trying to revoke past pardons: > [@](#): > > JULIAN EPSTEIN, CHIEF MINORITY COUNSEL, HOUSE JUDICIARY COMMITTEE: Yes, that’s absolutely correct. There are no constitutional checks whatsoever in what the president can do. He has plenary authority. This has been reviewed by the Supreme Court in a number of instances. > > Interestingly enough tonight, Congressman Barr and I probably also agree on another matter, which is this President Bush probably has the constitutional authority – it’s not settled – but probably has the constitutional authority, if he really doesn’t like these pardons, to rescind them. So the question is, is he really – and if the Republicans really don’t like these pardons that much, why not rescind them? And I think look, we probably all agree on this panel tonight that – with the exception of Susan McDougal, I’m glad she was pardoned – some of the other pardons, the Rich pardons… > > * * * > > KING: Bob Barr, Julian Epstein mentioned it: Can Bush rescind these pardons? > > BARR: Absolutely. There is case law going back to the last century, Larry, which clearly establishes that a president can rescind a pardon issued by his predecessor. And with regard to the 44 pardons in this case that had no supporting documentation – and that includes one for Ms. McDougal – I believe they are clearly defective. And I don’t think that that’s going to change her situation. But the fact of the matter is it just points out the very unusual way in which former President Clinton issued these pardons. > > He didn’t give any reasons for them. > > KING: Do you think – do you think President Bush should rescind? > > BARR: Oh, I think on those 44, yes. Now whether or not it’s too late to do that, I don’t know. But in other words, where you have a president, such as President Clinton, signing a document granting pardons – and there is no application or supporting documentation to tell what the scope of the pardon is – clearly, it’s a defective exercise of the pardon authority and ought to be undone. > > KING: Julian, if it’s clear, should he rescind? > > EPSTEIN: I wouldn’t give him that advice. I think that if the Republicans and if the White House, which has clearly expressed its disapproval of this, really believes it, then they may want to consider doing that. > > Mr. Barr mentions the issue about whether or not it’s properly identified, the scope of the pardon, that’s one issue that may be a basis on which the president may or may not rescind it. But the president I don’t think really has to have a reason to rescind other than the fact that the pardons may not have been delivered. > > So I think again this may be another example of trying to have it both ways here. > > KING: I see. Susan, was yours delivered? > > MCDOUGAL: No. It’s not delivered. [http://transcripts.cnn.com/TRANSCRIPTS/0102/28/lkl.00.html](http://transcripts.cnn.com/TRANSCRIPTS/0102/28/lkl.00.html) > [@](#): > > Mr. HOSTETTLER. Such murkiness on the potential actions on the court brings me to my next question, and that is there has been some discussion in the public forum that in fact because some pardons may not have been delivered, that they can in fact be rescinded by the President as a result of an 1869 decision in the Southern District Court of New York. Let me get that real quickly In re DePuy; that said—I think it was the President subsequent to Johnson—I think it was Grant—that did not allow for the delivery of a pardon, and so the individual was not pardoned. > > ``` > That is in direct contrast with what happened in Marbury v. Madison, with the delivery of a commission. In this decision they talk about that. I mean, they draw a distinction in that a commission, delivering a commission is a deed or is not a deed. > > ``` [Presidential Pardon Power](http://commdocs.house.gov/committees/judiciary/hju71180.000/hju71180_0.HTM) That, it seems to me, is exactly the opposite of what a pardon is for. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [December 29, 2008, 7:57pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/39 "2008-12-29T19:57:48Z")
> [@Gfactor](#): > > Right. I agree. What you wind up with if pardons are revocable is future adminstrations trying to revoke past pardons: > > [http://transcripts.cnn.com/TRANSCRIPTS/0102/28/lkl.00.html](http://transcripts.cnn.com/TRANSCRIPTS/0102/28/lkl.00.html) > > [Presidential Pardon Power](http://commdocs.house.gov/committees/judiciary/hju71180.000/hju71180_0.HTM) > > That, it seems to me, is exactly the opposite of what a pardon is for. I think I agree with you in many ways. Having read about, but not read the case cited in your second quote, (DuPuy), the talk about delivery goes to the question of when a pardon is effective, and that question doesn’t really depend on whether it’s revocable or not—The question there was whether physical delivery was necessary, or just Johnson’s signature. As the article I cite notes, there is a lot of support in the instant case for the argument that the formal requirements were completed (at least to the point of notification, acceptance, and a good argument for constructive delivery). As a plenary power, a pardon’s grant is at the president’s discretion, but he has to exercise that discretion-and if there are formal requirements for doing so, he has to comply with them for his exercise of discretion to have force. Hence, we find no obligation on any future president to actually give force to a pardon the prior president wants to, but neglects to validly issue–Johnson can’t demand that Grant draw up and sign a pardon to pardon a prisoner Johnson wanted to, but didn’t actually pardon. That’s what I think this case will turn on-if the court rejects this pardon, it’ll probably hold that the pardon was, at least in the eyes of the law, never issued. I can’t see a court holding that the pardon was validly issued but then revoked. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 29, 2008, 8:23pm UTC](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604/40 "2008-12-29T20:23:14Z")
> [@whorfin](#): > > I think I agree with you in many ways. > > Having read about, but not read the case cited in your second quote, (DuPuy), the talk about delivery goes to the question of when a pardon is effective, and that question doesn’t really depend on whether it’s revocable or not—The question there was whether physical delivery was necessary, or just Johnson’s signature. Right. In fact, the court was certain a pardon wasn’t revocable–yet he found that delivery was crucial, and refused to discharge the prisoner. Here’s the case: [Reports of Cases Argued and Determined in the District Courts of the United ... - Robert Dewey Benedict, Benjamin Lincoln Benedict - Google Books](http://books.google.com/books?id=0_E7AAAAIAAJ&printsec=frontcover#PPA307,M1) And an excerpt from it: > [@](#): > > It is contended, on the part of the petitioner, that, when this pardon received the signature of the president, and the seal of the department of state, it was a completed act, and passed beyond the control of the president. I think that is an entire mistake.The law undoubtedly is, that HN1Go to this Headnote in the case.when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed [\*15] act. And yet the question still remains – when is a pardon complete? It is argued, that a pardon stands on the same footing as a commission; and the doctrine of the case of Marbury v. Madison, 1 Cranch [5 U.S.] 137, is invoked in support of this view. The opinion of the court, in the case of Marbury v. Madison, was delivered in 1803, by Chief Justice Marshall, the same judge who, afterwards, in 1833, delivered the opinion of the same court, in the case of U.S. v. Wilson, 7 Pet. [32 U.S.] 150. In the case of Marbury v. Madison, [\*\*510] the president of the United States had nominated Marbury to the senate, for its advice and consent, to be appointed to the office of a justice of the peace of the District of Columbia. The senate advised and consented to the appointment. The president signed the commission appointing Marbury to be such officer, and the seal of the United States was, in due form, affixed to it by the secretary of state. Application was made to the secretary of state to deliver the commission to Marbury. It was not delivered, but was withheld. On that state of facts, the question came before the supreme court, as to whether Marbury was entitled to have [\*16] his commission delivered to him, on the view that the delivery was a purely ministerial act, or whether there was any power on the part of the president, or of the secretary of state, to control the commission. The chief justice, in his opinion in the case, uses this language: “In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For, if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.” He then shows, that the constitution and laws contemplate, in regard to offices, three distinct operations: 1st. The nomination, which “is the sole act of the president, and is completely voluntary;” 2d. The appointment, which “is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate;” 3d. The commission. He then states, that, in the case before the court at that time, the appointment was made by the president, by and with the advice and consent of the senate, and was evidenced by no act but [\*17] the commission itself; that the appointment, being the sole act of the president, was completely evidenced, when it was shown that the president had done everything to be performed by him; and that, even if the commission, instead of being evidence of an appointment, should be considered as constituting the appointment itself, still, the appointment would be made when the last act to be done by the president was performed, or, at farthest, when the commission was complete; that the last act to be done by the president was the signature of the commission; that he had then acted on the advice and consent of the senate to his own nomination; that the time for deliberation had then passed, and the president had decided; that his judgment on the advice and consent of the senate, concurring with his nomination, had been made, and the officer was appointed; that the appointment was evidenced by an open and unequivocal act; that this act, being the last act required from the person making it, necessarily excluded the idea of its being, so far as respected the appointment, an inchoate and incomplete transaction; that the power of appointment was exercised when the last act required from the [\*18] person possessing the power had been performed; and that the last act was the signature of the commission. He then goes on to say, that, when the seal was affixed, if the affixing of the seal was to be considered as necessary to the validity of the commission, the appointment was made, no farther act remaining to be performed on the part of the government. He then proceeds to consider the argument that was urged in reference to a commission – that it was like a deed, to the validity of which delivery was essential – and says: “It has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential.” On this subject, he comes to the conclusion, that, if the act of delivery was necessary to give validity to the commission, it was delivered when it was executed and given to the secretary of state for the purpose of being sealed, recorded, and transmitted to the party. But he holds that, in the case of a commission, a formal delivery to the person is not among the solemnities required as evidences of the validity of the instrument, and that only the sign manual of the president, and the seal of the United States, are those solemnities. [\*19] He thus expressly puts a commission, as evidence of an appointment having been made to an office by the president and senate, on a totally different ground from an instrument which requires delivery, and holds that, when the appointment is made by the president, by and with the advice and consent of the senate, and the president has signed the commission, and the seal of the United States has been affixed to it, the president has done everything that he has any right to do in the premises; that his power then ceases; and that a delivery of the commission is not essential to the validity of the appointment. He then says: “If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance.” He illustrates this view by the fact, that when a person appointed to any office refuses to accept it, the successor is nominated in the place of the person who has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy. > > I have gone thus, at some length, into the views of the chief justice, in the case of Marbury v. Madison [supra], for the purpose of showing, [\*20] in contrast with these views on the subject of an appointment and a commission, that the same judge, in the same court, in delivering the judgment of the court, in the case of U.S. v. Wilson [supra], placed a pardon by the president on a totally different footing from that on which a commission was placed, in the case of Marbury v. Madison. In U.S. v. Wilson, the chief justice [\*\*511] says: “HN2Go to this Headnote in the case.A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended. \* \* \* A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.” In the case of Marbury v. Madison, it was held, that a commission was not a deed, or assimilated to a deed, and that delivery was not essential to its validity. The two instruments are thus placed in as direct antagonism, on the question of the necessity of a delivery, as it is possible for the same court, speaking through [\*21] the same distinguished jurist, to place two matters. It is manifest, therefore, that, under the constitution and laws of the United States, a pardon must be regarded as a deed, to the validity of which delivery is essential. It is, also, apparent, that the decision in the case of Marbury v. Madison furnishes no support to the views urged on the part of the petitioner. > > The only question in this case is, whether this pardon was delivered, in the sense of the law, to the petitioner, or to any person for him. All that was done in regard to the pardon was, that the secretary of state transmitted it to the marshal, with a letter, stating: “I transmit herewith the president’s warrant for the conditional pardon of Jacob and Moses De Puy, the receipt of which you will please acknowledge.” In the case of Com. v. Halloway, 44 Pa. St. 210, a habeas corpus was issued to bring up the body of a prisoner who claimed to have been pardoned. The case was one before the full bench of the supreme court of Pennsylvania, the opinion of the court being delivered by Chief Justice Lowrie. In the opinion, the chief justice says: “There are charters or patents for new inventions, for lands, for grants [\*22] of corporate privileges, and as commissioners of public affairs, as well as those of pardons; and, though all these have a strong likeness as to their form, and to the source whence they immediately proceed, yet they have also some marked points of unlikeness that warn us to be cautious about confounding the rules that belong to any one kind with those of another. We notice here only the distinction that is important for this case. With us, those that relate to new inventions, to lands, to corporate privileges, and to offices, are usually only the last step in the process by which certain rights become completely vested; and, when all preliminary steps are regular and complete, this last step becomes a mere ministerial duty, definitely prescribed by law, and the claimant has a right to demand that it shall be taken, because he has performed all the conditions upon which the law has made his title to it to depend.” That was the case in Marbury v. Madison, where the last step – the delivery of the commission – was a mere ministerial duty, the right to the office having previously become a vested right. He then goes on to say: “But charters of pardon are entirely different from these, [\*23] in the conditions on which they depend; for, (not to speak of those which are issued in pursuance of promises, by proclamation or otherwise, of executive clemency,) they are forwarded on mere grace, and not at all on preliminary steps that furnish legal merits or a legal title to them. The intention of the executive to grant a pardon can have no legal force until carried into completed act. And his instructions to his proper officers, and their work in pursuance of his instructions, are only the means by which he embodies his intentions into the completed act, and have no force out of the executive sphere until thus completed, though the courts may, when the intention is satisfactorily shown, suspend further proceedings, in expectation of the actual pardon, as has been sometimes done in England. The completed act is the charter of pardon and delivered. This is the only step that gives title to a pardon. Until delivery, all that may have been done is mere matter of intended favor, and may be cancelled, to accord with a change of intention.” He then discusses the question – “Was this pardon delivered?” It appeared that it had come to the hands of the warden of the prison; and the [\*24] court says, that, “by usage, its delivery to the warden is prima facie equivalent to delivery, or is a constructive delivery, to the prisoner; but it is open to be proved no delivery, by showing circumstances that are inconsistent with the intention to deliver it.” > > * * * > > Under that state of facts, the question arises, whether, when a prisoner is exclusively under the control of the warden of a prison – even though it may not be necessary to deliver a pardon to the prisoner himself, and even though the delivery of a pardon to the warden of the prison, who has the exclusive custody and control of the prisoner, may be equivalent to a delivery to the prisoner – whether a delivery of a pardon to any other person, before it reaches the warden of the prison, is equivalent to a delivery to the warden of the prison. This question must be answered in the negative, not only on general principles, but on the evidence in this case. It appears, that the marshal usually gave or transmitted the pardons which he received from the department of the state, to the keepers of the prisons where the prisoners pardoned were confined. Why were the pardons sent to the keepers of the prisons? Undoubtedly, because, under the act of 1834, the prisoners were and are in the custody of the keepers of the prisons, and not [\*29] in the custody of the marshal. The marshal, having no power to take a prisoner out of prison, cannot go to the prison with a pardon and take the prisoner out, retaining the pardon himself; and the fact, that the marshal has always been in the habit of giving or sending pardons to the keepers of prisons, serves to show conclusively that the delivery of a pardon, in order to be effective, must be, at least, a delivery to the keeper of the prison. > > The marshal was, in this case, no more than the messenger of the president. If the president had sent the pardon by a special messenger, and had directed him to go to the warden of the Blackwell’s Island penitentiary, and to deliver the pardon to him, and had despatched the messenger on his way, it cannot be questioned that the president could, by a telegraphic despatch, or any other communication, to the messenger, while on his way, have lawfully directed the messenger not to deliver the pardon to the warden. If the president can arrest the mission of the messenger when the messenger has departed but ten feet from the door of the presidential mansion, he can arrest such mission at any time before the messenger delivers the pardon to the [\*30] warden of the prison. > > No question arises, in this case, concerning any right or power, on the part of the president, [\*\*513] to revoke or recall a completed pardon. In the language of Chief Justice Lowrie, before cited, “the completed act is the charter of pardon and delivered. This is the one and only step that gives title to a pardon. Until delivery, all that may have been done is mere matter of intended favor, and may be cancelled, to accord with a change of intention.” > > The point urged, on behalf of the petitioner, that the pardon was signed by President Johnson, and was sealed during his administration of the executive office, and that the order to the marshal to return the pardon to the department of state was made by his successor, President Grant, is of no force. The office of president did not die when President Johnson gave place to President Grant. HN5Go to this Headnote in the case.The power of pardon is conferred by the constitution upon the office of president. The president who signed the pardon in this case would have had precisely the same right which I think his successor had, to arrest the pardon before it was delivered to the warden of the prison; and the successor had the same right [\*31] in that respect as his predecessor would have had.I place my decision, in this case, solely on the ground that there never was any delivery of the pardon to the petitioner, or to any one for him. There never was any completed pardon. It has not been contended, on the part of the United States, that the president has power to annul, or withdraw, or cancel a completed pardon. > > In connection with the fact that the pardon was never delivered to the petitioner, or to any one for him, there is one circumstance that is worthy of observation, and that is, that Nelson, the person who went to Washington to procure this pardon, asked to have it delivered to him, and was refused, it being stated to him by the chief clerk of the department of state, that the pardon must be sent to the marshal. That was equivalent to a declaration by the executive authority of the United States, that the benefit of a locus penitentiae was claimed. If the pardon had been delivered to Nelson, for the petitioner, the case might, perhaps, have been different. I do not say that it would; but the circumstance that a request to deliver the pardon to a person claiming to be the agent of the petitioner was refused, [\*32] is worthy of consideration. The executive authority plainly said to Nelson, that it would not transmit this pardon by him, as the messenger of the petitioner, but would transmit it by its own messenger. > > Upon the ground that there was no delivery of the pardon in this case to the petitioner, or to any one for him, or to the warden of the prison, who, by act of congress, had the exclusive control and custody of the petitioner, I hold that the petitioner is not entitled to be discharged, and that he must be remanded to the custody of the warden of the penitentiary at Blackwell’s Island. [Previous page](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604.md?page=1) [Next page](https://boards.straightdope.com/t/ooops-can-a-presidential-pardon-be-rescinded/478604.md?page=3)