When is the Pardon a Perversion of Justice?

US presidents have an absolute and unlimited power to pardon anyone who has committed a federal crime or even to pardon someone who is awaiting trial.  Although a president cannot pardon himself, he can pardon someone who’s committed a crime on his behalf (for instance, a person who refuses to testify in an impeachment process.)

On November 15, 2019, the President intervened in several military war-crimes cases and pardoned three members of the military.

• Former Army Lieutenant Clint Lorance was serving a nineteen-year sentence for ordering his men to fire on three Afghan civilians, killing two.  Members of his own platoon had testified against him, he had falsified reports in order to cover up the crime, and his conviction had been reviewed and approved by the Court of Military Affairs.  The President, nevertheless, gave him a full pardon.
• Army Maj. Mathew Golsteyn had not yet been tried but faced murder charges.  He had confessed to the murder.  His trial was to begin soon.  Rather than wait for the military justice system to handle it, however, Trump also gave him a full pardon for his alleged offenses. 
• The case against Chief Petty Officer Edward Gallagher, a Navy SEAL was seemingly less serious.  While he was charged with indiscriminately shooting Iraqi civilians, threatening a fellow SEAL in order to cover up these incidents and posing for photographs while standing over a dead ISIS fighter, technical irregularities in the court-martial resulted in dismissal of all charges except the last.  Trump ordered the restoration of rank and service medals that had been taken.

In each case, the President overruled the Secretary of Defense, the Secretary of the Army and the unanimous opinions of other military officers, including the juries of their peers that convicted the soldiers.  Several retired military generals spoke out that the pardons “undermine decades of precedent in American military justice that has contributed to making our country’s fighting forces the envy of the world.”  Trump’s pardons for murders were also unprecedented in American history.  Karen Tumulty writes,

Several times the president described the treatment of these service members as “unfair” even though a thorough investigation … comparable to a civil grand jury trial, had been conducted to establish probable cause. Furthermore, the courts-martial members in each case were officers or peers of the accused. All were also combat veterans who fully understood the so-called “fog of war” and the need for quick decision during urgent and dangerous situations.

As above, there is no question that the President has full constitutional authority to pardon these men.  But questions remain: Why pardon these particular men?  Why pardon someone convicted of murder?  Why now?  What will be the long-term impact on the military and on our democracy?  

As far as is known, there were no mitigating factors in these cases that warranted pardon.  (Officer Gallagher seems to have benefitted from his mother’s plea on Sean Hannity’s Fox News program.)

The generals’ protests against Trump’s pardons, were primarily on the basis that they would weaken international protections against war crimes and the US Uniform Code of Military Justice (UCMJ) that is responsible for discipline within the armed services.  Without accountability there is no discipline. 

It is hard to imagine any except political reasons for these pardons, and the White House offered none at all.

 When the commander-in-chief refuses to hold accountable soldiers convicted by military courts martial, military discipline is upended.  When the President pardons for political reasons, the entire democracy suffers.