Article II, Section 2 of the U.S. Constitution says the President "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." A reprieve reduces the severity of a punishment without removing the guilt of the person reprieved. A pardon removes both punishment and guilt.
Historically, presidential pardons serve to heal and restore the nation, as when President Lincoln pardoned war deserters on the basis of their promise to return to their units to fight or when Gerald Ford pardoned Richard Nixon after his resignation in the Watergate scandal or when Jimmy Carter pardoned all Vietnam draft dodgers. The end of a President’s term is usually a time for the issuance of controversial pardons. At the end of his term, George H.W. Bush pardoned Caspar Weinberger and other officials caught up in the Iran-Contra scandal. Bill Clinton provoked controversy by pardoning Marc Rich, the fugitive financier whose ex-wife donated $450,000 to the Clinton Presidential Library. This year’s controversial pardon is George W. Bush's pardon of Brooklyn real estate developer, Isaac R. Toussie.
Bush’s issuance of the pardon to Toussie is controversial given the predatory mortgage lending practices for which Toussie was convicted. Toussie’s real estate dealings began in the 1970s, when he and his father. Robert I. Toussie, began buying thousands of parcels of land for development on Long Island, mostly in Suffolk County, including the famed 39-acre Chandler estate in Mount Sinai. He bought that parcel for $500,000 in 1997 and sold it to Suffolk County for $5 million three years later which triggered charges of collusion with two Suffolk County officials and investigations by the NY Attorney General and the federal government. In all, the Toussies developed more than 5,000 parcels of land on Long Island in towns like Amityville, Hauppauge, Port Jefferson Station, Bellport, Center Moriches, Mastic, Manorville and marketed them to poor, minority homebuyers from Brooklyn. The pardon clears Toussie’s 2003 guilty plea for mail fraud and lying to the Department of Housing and Urban Development where he admitted to falsifying finances of prospective homebuyers seeking HUD mortgages for which he was sentenced to 5 months in prison and 5 months of home detention and fined $10,000.
In addition to the criminal convictions, Toussie faces class actions involving charges of inflated prices and misleading advertising for some of the Long Island developments. The ads offered single-family detached homes with backyards on Long Island and townhouses on Staten Island for "only $1,000 down and $999 per month” and “includes home, land, principal and interest". Those ads are part of an ongoing class action suit by more than 400 families alleging that the Toussies deceived them into buying overpriced, badly built homes. A Presidential pardon would preclude testimony about Toussie's prior convictions in the civil case.
The controversy of the issuance of the pardon was compounded when it was discovered Toussie’s father had donated more than $28,000 to the Republican National Committee and $2,300 to John McCain’s presidential campaign this year. Based on this conflict, Bush is now attempting to revoke the pardon in what may be the first instance of a president’s withdrawing a pardon after it was announced.
There are a number of questions that will likely be the subject of future litigation. Why did Toussie fail to submit a detailed petition of reasoning complete with character references and a five year waiting period to Office of the Pardon Attorney? Was Toussie’s request for a waiver of the DOJ’s 5-year waiting period denied by the Office of the Pardon Attorney? Why did Toussie’s attorneys circumvent the Office of Pardon Attorney and submit a pardon application directly with the White House?
Rep. Jerrod Nadler (D-NY), whose district includes parts of Brooklyn and Manhattan, has introduced H.Res.1531 to reduce the President’s pardon power so that he cannot issue pardons to senior members of his administration during the final 90 days of his term of office. The proposal requires a constitutional amendment which is highly unlikely to succeed. Nadler’s resolution appears to be a political effort to stem abuse of the pardon power.
Statistics on presidential clemency actions by administration from 1945 to the present are available here from the website of the Office of Pardon Attorney. Pardon Power, a blog dedicated to news about presidential pardons and the pardon power (or clemency powers) in each state is also worth reading for more on this topic.