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Bush Swiftly Rescinds Pardon

December 25, 2008|Peter Wallsten

WASHINGTON — In an apparently unprecedented move, President Bush on Wednesday revoked a pardon he had issued 24 hours earlier for a politically connected real estate developer who defrauded hundreds of low- income home buyers -- acknowledging that White House aides had not fully described the scope of the crimes and the context of the clemency application.

The Christmas Eve reversal came after it was discovered that the pardon of Isaac Toussie had not met Justice Department guidelines, and that Toussie's father had donated $28,500 to the Republican National Committee, prompting some of Toussie's victims to complain that he got his record cleared thanks to his political ties.

The pardon also threatened to embarrass Bush because Toussie bypassed normal procedures and took his case directly to the West Wing, hiring a former top lawyer in the White House counsel's office, Bradford Berenson, who had access to the president's most senior advisors.

It is not clear that Bush is legally allowed to revoke the pardon, according to some analysts.

The issue of presidential pardons has been especially sensitive since President Clinton granted a series of last-minute pardons for well-connected criminals -- most notably fugitive financier Marc Rich, who had been indicted on tax evasion and other charges.

The pardon, granted during Clinton's final hours in the White House on Inauguration Day 2001, sparked a furor when it became known that Rich's family had made large campaign contributions and was a major donor to the Clinton library.

Bush has used his pardoning power sparingly during his eight years in the White House.

Until now, his most controversial clemency decision was commuting the sentence of former White House aide I. Lewis "Scooter" Libby, who was convicted of lying to prosecutors in the Valerie Plame case. But Libby did not receive a full pardon.

White House officials said when Bush learned the details of the Toussie case, he was especially concerned that people would think campaign contributions factored into the pardon.

"Everyone here was surprised by it," White House spokesman Tony Fratto said.

A written White House statement said White House Counsel Fred F. Fielding had "reviewed the application and believed, based on the information known to him at the time, that it was a meritorious application. He so advised the president, who accepted the recommendation."

The White House statement referred to "information that has subsequently come to light." Aides declined to provide specifics beyond that the president had not known about the RNC contribution and that he had limited time to consider the details of each pardon.

"It's hard to go through everything with him," Fratto said. "There's a lot of pardon petitions that he reviews, and so it's hard to go into a lot of depth."

Experts said Wednesday they knew of no other instance of a presidential pardon being revoked. Some analysts suggested Toussie might be able to challenge the reversal in court.

"I can't think of another time that it's happened for a presidential pardon," said Margaret Love, who was the lead pardon attorney under President George H.W. Bush and for part of the Clinton administration. "It's not clear to me that it's as easy to do as all that."

White House aides said that the pardon did not take effect until it was "delivered" to Toussie and that that had not happened when Bush changed course Wednesday. The definition of "delivered" was unclear.

More troubling, some analysts said, was that the pardon had been approved in the first place.

Toussie, a Brooklyn, N.Y., home builder, had been convicted after admitting that he falsified financial information of potential home buyers seeking mortgages backed by the Department of Housing and Urban Development. He was sentenced in September 2003 to five months in prison, five months of house detention and a $10,000 fine.

Justice Department officials declined to consider Toussie's pardon application, which was filed in August, because department guidelines generally require applicants to wait five years after leaving prison. The agency typically spends months investigating a case and seeks comment from prosecutors and the trial judge before deciding whether to recommend a pardon. This did not occur in Toussie's case.

Toussie's father, Robert, made his donation to the RNC in April, along with more than $11,000 in contributions to other GOP candidates over the course of the year.

The pardon application was granted Tuesday with 18 others.

White House officials confirmed that Berenson, a former associate White House counsel, had brought the case to Fielding's office but declined to comment further on internal proceedings.

"This demonstrates a pardon process that is broken," said Dan Kobil, a law professor at Capital University in Ohio and an expert on presidential pardons.

"Obviously the president can't check out every case himself, and this was left to an ad hoc, chaotic process at the White House.

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