ROBERT SIEGEL, Host:
SIEGEL: From NPR News, it's All Things Considered. I'm Robert Siegel. It's not unusual for a pardon to generate controversy, but the story this week of first, the pardon, and then the recall of the pardon of Isaac Toussie goes beyond unusual. Isaac Toussie is a Brooklyn developer who pleaded guilty to mail fraud and making false statements to the Department of Housing and Urban Development. In 2003, he was sentenced to five months in prison and five months under house arrest. His pardon was announced on Tuesday, and after it was noted that Mr. Toussie's relatives made $40,000 worth of campaign contributions to Republicans this year, the pardon was withdrawn. Well, joining us is Dan Kobil. He's a law professor at Capital University in Columbus, Ohio, and he's an expert on presidential pardons. Welcome to the program.
Professor DAN KOBIL (Law, Capital University, Columbus, Ohio): Hi, Robert.
SIEGEL: The Justice Department's Pardon Attorney Ronald Rogers evidently received a clemency request of a Mr. Toussie, and he would not consider it - standard operating procedure?
Prof. KOBIL: Absolutely. Under the Justice Department's regulations someone has to have been released from confinement for at least five years before the Justice Department will consider them.
SIEGEL: Now, an application was also made to the Office of the White House Counsel. Is that standard operating procedure?
Prof. KOBIL: Well, unfortunately it appears to be becoming that way. It didn't use to be the case so much, because presidents used to use their clemency power regularly throughout their terms. But Presidents Clinton and Bush have only started to turn their attention to it toward their end of their term at which point there usually isn't time to get the Justice Department involved. So, the sensible thing to do if you want to get a pardon or commutation is go directly to the White House, although it's not necessarily the best practice.
SIEGEL: Ever heard of a pardon being announced and then unannounced?
Prof. KOBIL: Not in living memory. President Grant sought to revoke a pardon granted by President Andrew Johnson, but in recent times, this just doesn't happen.
SIEGEL: Is it clear, by the way, that even though an announcement comes out of the government saying that Mr. Toussie has been pardoned, that that doesn't constitute a pardon? What is the act of pardoning that would not be revocable?
Prof. KOBIL: Well, this is similar to a number of issues under our constitution where the Supreme Court hasn't spelled out the Ps and Qs of it. Some people would argue that as soon as the president signs a warrant that the pardon is effective, others could just as plausibly argue that there also has to be some form of communication or delivery to the person who's pardoned. And that the president, until that occurs, could change his mind, so I think that the operative question here is going to be what constitutes delivery and we don't have a Supreme Court opinion on exactly what that would be.
SIEGEL: Reading what Isaac Toussie did is like a poster child for the subprime lending scandal. I mean this is not only using mortgages with hidden costs, but selling houses that then start collapsing after you buy them.
(Soundbite of laughter)
Prof. KOBIL: This is an example of political tone deafness to rival even President Clinton's pardon of Mark Rich. The difference here is we have a pardon of someone who's involved in the same kind of activities that has brought down the U.S. economy. So, this could have been a very evocative pardon, which is probably why it was seen as wise to try to revoke it.
SIEGEL: Dan Kobil, Professor of Law at Capital University in Columbus, Ohio, a student of presidential pardons. Professor Kobil, thanks a lot for talking with us today. Merry Christmas.
Prof. KOBIL: Thanks, Robert, it was a pleasure.
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