Fred Fielding, counsel to President Bush, is an old lion of Washington, the sort of man who would have been portrayed as a wise elder statesman when books like “Advise and Consent” were popular, and people were less cynical about their government.  He is also, apparently, about as computer literate as my grandmother, and as inclined to engage in substantive research.

The WSJ Law Blog has summaries of reporting by the New York Times and the Los Angeles Times on how Fielding became involved in the decision to pardon New York real estate conman Isaac Toussie, a pardon that the President purported to revoke when details of Toussie’s crimes (I don’t say alleged, because they’re still crimes) and donations by Toussie’s father to Republican candidates became known.  While I don’t know what actually went on with the Toussie pardon, the appearance is certainly one of impropriety, and the White House claims it didn’t have full information about the Toussie case when the decision was made.

So why was the decision made?  Apparently Toussie’s counsel, Bradford Berenson of Sidley Austin and formerly of the office of White House counsel, bypassed the Justice Department attorneys who review pardons and went directly to Fielding.  Apparently Berenson’s word was good enough, without input or investigation from the Justice Department.  Apparently no one in Fielding’s office had ever heard of “google”. It took me, by no means as good a lawyer as Fielding, thirty seconds to find this: “Homeowners’ Suit Says They Are Victims in Deceptive Sales Scheme” (even now that Toussie’s google footprint has grown enormously since Tuesday), and ten seconds to find this $30,800 donation by Toussie’s father to McCain Victory Committee.

At the very least, had Fielding asked an intern to google the name Toussie for an hour or two, he could have produced quite a dossier to counter the wiles of Brad Berenson.  Perhaps better information about Toussie and his father, already publicly available, would have set a few bells ringing in Fielding’s mind.

To be honest, I don’t care that much about the Toussie pardon, though I dislike it.  What I do care about is the upcoming nomination hearings on Obama Attorney General designate Eric Holder.  I care about Holder’s hearing because Holder is no friend to free speech, no friend of the right to bear arms, and in general seems to favor government intrusion into virtually everything.   Holder came out of the Clinton-Reno Justice Department, which before Alberto Gonzales set a high standard for thuggishness, overreach, and political gamesmanship.

While I’m not fool enough to think that Holder’s nomination will be rejected, I had been hoping that Holder would take a shellacking over his role in the even more egregious Clinton decision to pardon fraud artist and fugitive Marc Rich.  Holder would be nominated but, I hoped, chastened and aware that he would be watched.  Now Fielding has handed Holder an arrow which will surely be fired back at Senate critics: “Mistakes were made Senator Specter, but this was an anomaly and it occurred with only hours to go before President Clinton would leave office.  Why even Mr. Fred Fielding, the well-respected counsel of the outgoing administration and a man I greatly admire, has taken his lumps over one ill-considered pardon in the waning days of the Bush administration.”

Of course, all of this will be a tempest in a teapot when Bush issues pardons on January 19.

Edit: 12/28/2008 – Reader Margaret Love of the District of Columbia Bar, who I suspect knows more about this subject than I ever will, emails with the following historical information, reprinted with Ms. Love’s permission:

If a pardon is properly revoked before delivered, then it has no effect and no one need pay any mind to it. But as to that issue, here are some historical notes relevant to the WH theory that the Toussie pardon was not fully executed because the Pardon Attorney had not yet sent Toussie a piece of paper evidencing the President’s act:, and thus could be revoked notwithstanding its public announcement.

The pardon warrrant for Mark Felt and Edward Miller was signed by President Reagan on March 26, 1981 though it was not announced to the general public until April 15.  (The delay was partly because Reagan was shot on March 30.)  Felt and Miller themselves were not informed of the grants until they were announced publicly, and even Attorney General William French Smith was not made aware of them previously.. (My predecessor as Pardon Attorney David Stephenson had prepared the warrant at then-White House Counsel Fred Fielding’s request, and he got into a lot of hot water with the AG who learned about the grants for the first time from the press.)  It is my understanding that no document evidencing the pardons was delivered to either Felt or Miller, by the Pardon Attorney or anyone else.

In the more recent case of the six Iran Contra defendants pardoned by President George H.W. Bush on December 22, 1992, no warrants were executed by the President and nothing was sent to them by the Pardon Attorney.  Instead, like President Ford with the Nixon pardon, President Bush announced the pardons by Proclamation published in the Federal Register.  No documents evidencing the pardons were ever delivered to the six.  (I was Pardon Attorney at the time, so I can say this with authority.)

The fact is that history is replete with examples of pardons being granted by the President with no subsequent involvement by the Pardon Attoney, and no formal notice given the recipients apart from the public announcement of them.  For example, I recall hearing that a number of those pardoned on the final day of President Clinton’s term were never notified by the Pardon Attorney of the President’s action, because they had never applied and OPA didn’t have addresses for them.

Thanks to Ms. Love for the insight.

Filed under: Eric Holder