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War-Crimes Pardons Seen as New Twist on Trump’s Clemency Power

May 24, 2019, 8:50 AM

President Donald Trump’s reported intent to pardon some U.S. service members accused of war crimes over the Memorial Day weekend would break new ground in an already unconventional process, and may have lasting implications for military justice.

Among the pardons Trump reportedly is considering are for Special Operations Chief Edward Gallagher of the Navy SEALs and Army Green Beret Maj. Mathew L. Golsteyn. Gallagher is accused of shooting unarmed civilians and killing a detainee in Iraq. Golsteyn is accused of killing an unarmed Afghan. Also among the rumored potential pardon recipients are a group of Marines who urinated on Taliban corpses.

Lawyers, including those with military experience, say these raise red flags not just because of the serious nature of the charges, but also because some of the pardons would be made before convictions in court. The Justice Department says on the FAQ section of its website that preemptive pardons are “highly unusual.”

Issuing a pardon in a military case before trial “would signify an utter lack of faith in the military justice system to get to the right outcome as well as sending a horrible signal to all the deserving applicants who have been waiting to get answers on their petitions,” said Rachel Barkow, a clemency expert at NYU School of Law.

After issuing a record number of clemency grants at the beginning of his presidency, including to self-styled America’s toughest sheriff Joe Arpaio for contempt and conservative provocateur Dinesh D’Souza for campaign finance fraud, Trump had been quiet on the pardon front until this month.

Mogul, Murderer, Shrimp-scammer

He forgave fraud and obstruction of justice convictions of media mogul Conrad Black, who wrote a laudatory book last year called “Donald J. Trump: A President Like No Other,” former Republican Rep. Patrick James Nolan’s racketeering conviction in an FBI sting called “Shrimpscam,” and former Army 1st Lt. Michael Chase Behenna’s murder of an Iraqi detainee.

“Pardoning people who flatter Trump is unseemly and unprincipled, but not dangerous. This is unprincipled and dangerous, potentially,” clemency expert Daniel T. Kobil said of war-crimes pardons.

Kobil, a professor at Capital University Law School in Columbus, Ohio, conceded there are exceptions to what he called a “disturbing pattern” of politically based pardons: his commutation last year of Alice Marie Johnson’s drug sentence, at the urging of Kim Kardashian, and, to a lesser extent, this month’s pardon of Nolan, who’s since become a criminal justice advocate.

“We gave the pardon power to the president because our justice system is imperfect, and we had an assumption, the framers did, that the president would use the clemency power very judiciously and responsibly in the interests of the greater good,” he said.

Appeasing political supporters with pardons isn’t “totally unheard of,” Kobil acknowledged, but “in the past, at least in modern times, presidents have done that only at the farthest margins of their clemency grants.”

“So they’ll have, you know, 99% defensible, principled grants, and then, you know, maybe they’ll throw a Caspar Weinberger a pardon or a Roger Clinton a pardon,” he said, referring to controversial pardons issued by George H.W. Bush and Bill Clinton.

‘The Them is Us’

Trump pardoned Behenna after his conviction for “unpremeditated murder in a combat zone.” The White House cited “broad support from the military” in announcing a pardon for Behanna, who had claimed self-defense.

A former Army infantryman and Judge Advocate, Chris Jenks, called the pardon “problematic.”

But even that case came after a conviction. If Gallagher and Golsteyn are pardoned, it would come before they’re tried.

Jenks disagrees with the narrative from Trump and pardon supporters of “‘we support the troops’ and some kind of us vs. them narrative.”

“The them is us,” said Jenks, director of the criminal clinic and professor of law at SMU in Dallas.

He noted the accusations against Gallagher came from several fellow SEALs. So this isn’t a “don’t believe the lying detainees/terrorists, believe the U.S. warfighter situation,” he said, noting that “a number of members of the military, military law enforcement, commanders, and military lawyers, with access to the information/evidence, concluded that there were sufficient grounds to proceed to trial.”

Plus, Jenks said, the cases now said to be up for pardons “did not involve split second decision making.”

Barr as Common Thread

Pardons offered before a conviction, military or civilian, are very rare. The most famous case may be President Gerald Ford’s pardon of his predecessor, Richard Nixon.

The war crimes pardons may be more analogous to Bush’s pardon of Weinberger, Ronald Reagan’s defense secretary, who was implicated in the Iran-Contra scandal, involving U.S. arms sales to Iran to fund war efforts against communism in Central America.

Then, as now, William Barr was the U.S. attorney general. He supported Iran-Contra pardons to Weinberger and others.

Bush’s pardon of Weinberger was seen by some as a move to alleviate Bush’s own exposure—he was Vice President at the time—in an independent counsel probe, leading the counsel to opine that, with Bush’s pardon, the cover-up “has now been completed.”

“So in a way, Bush’s pardon of Weinberger implicated self interest in an even more patent way than these ‘Fox and Friends’ pardons of military war criminals,” Kobil said. But still, these Memorial Day pardons could “send this message that the military officials are so concerned about, that the U.S. condones war crimes and murder by soldiers of the innocent.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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