Bush OLC, Act. 1

[Nelson Lund]

Actually, it seems to have been Chief Justice Marshall, not some unidentified
Justice Department lawyers, who hit upon the theory that delivery is essential
to the validity of a pardon. United States v. Wilson, 7 Pet. 150 (1833). And,
so far as I know, the Bush administration has not yet appointed any lawyers to
OLC or anywhere else in the Justice Department. Right or wrong, the theory is
an old one that appears to have been discovered by Clinton administration
holdovers.

Nelson Lund
George Mason Law School


"Michael Froomkin - U.Miami School of Law" wrote:

> The Bush OLC appears to have hit the ground running.  Today's online
> Washington Post reports the following in an article saying that Bush
> rejected legal advice that he might be able to withdraw Marc Rich's
> pardon:
>
> "Justice Department lawyers had hit on the novel legal theory that a
> pardon is like a warrant and is not valid unless it has been served.
> Newsweek magazine, which first reported the theory, said Rich's pardon has
> not been delivered."
>
> Why there should be an analogy between a pardon and a warrant is not clear
> to me (nor indeed is the argument that service is a necessary element to
> delivery of a pardon). This sounds more like an attempt to revive the
> theory advanced in Marbury, that a judicial commission did not vest
> without delivery. But in Marbury itself, didn't the Court totally reject
> that idea in principle, resting its decision on the question of remedy
> (mandamus) under sec. 13 of the Judiciary Act of 1789?
>
> Whatever the theory, the suggestion that there was even an arguable case
> as to the revocability of a pardon augers for interesting times on the
> outer limits of constitutional theory during the next four years.
>
> --
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