Unpardonable Pardons

The President continues to ignore the military's system for determining measures to ensure justice.
November 26, 2019
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SAN DIEGO, CA - JULY 02:R, Navy Special Operations Chief Edward Gallagher celebrates after being acquitted of premeditated murder at Naval Base San Diego July 2, 2019 in San Diego, California. Gallagher was found not guilty in the killing of a wounded Islamic State captive in Iraq in 2017. He was cleared of all charges but one of posing for photos with the dead body of the captive. (Photo by Sandy Huffaker/Getty Images)

Headlines the past two days have been all about Secretary of Defense Mark Esper firing Navy Secretary Richard Spencer for going around his back to the White House in the matter of Navy SEAL Eddie Gallagher. Although Gallagher had been acquitted of a murder charge while deployed to Iraq, he had been convicted of the lesser offense of bringing discredit to the service by posing next to a dead ISIS fighter and demoted in rank. Trump had earlier ordered the Navy to pull him out of the brig and, after his conviction, tweeted that he would not allow Gallagher to be demoted or lose his Navy SEAL trident pin. Now, supporters of Esper and Spencer are in a media spat about whom was making the most sincere effort to keep the president’s interference in the military judicial system from causing further harm.

Of course, the real issue is not whether Secretary Esper’s decision to abide by the President’s command will result in cauterizing the wound to the system by letting the Navy move on, as he suggests. Nor is the issue whether Secretary Spencer’s plan to save the Navy’s face—to let the formal review of the case move forward while privately giving assurance to the president that Gallagher would be let off the hook—would have worked. Rather, the real issue is the President’s decision to intervene in the case of Gallagher and pardon two soldiers—one already convicted of murder and the other facing a murder trial in the coming months.

The President and his lawyers like to argue that a president can pardon whomever he wants. Article II of the Constitution states the president “shall have the Power to grant Reprieves and Pardons for Offenses against the United States.” With the only caveat that the pardon power cannot be used in cases of impeachment, the president’s power does appear unlimited at first blush. And, indeed, Trump has made it a regular feature of his presidency to issue pardons in high-publicity, conservative cases, such as former sheriff Joe Arpaio and commentator Dinesh D’Souza. He’s even gone so far as to raise the possibility of a pardon for former Illinois governor Rod Blagojevich—the apparent logic being that the governor had once been a “Celebrity Apprentice” on Trump’s TV show.

Is the pardon power really without any boundaries, as this White House seems to believe? What if, for example, a president used the pardon power to hide a crime that he might be involved in? Say, a drug dealer from whom he had previously bought cocaine? Perhaps the president could be said to have the authority to issue that pardon but, once discovered, it certainly and correctly would be assessed as grounds for impeachment.

But what then of a series of pardons that can be said to undermine the trust and effectiveness of a judicial system, in this instance a military judicial system? Are we to ignore one of the president’s most essential duties, to “take Care that the Laws be faithfully executed?” Or more broadly, what of pardons that rest on a view of servicemen and women as “killing machines” (as the President has put it) and hence not responsible for violations of the military code of conduct or war crimes? Are we to ignore the commander-in-chief’s responsibility to ensure discipline among the rank and file that he is ultimately charged with leading?

The pardon power was intended, according to Hamilton writing as Publius in The Federalist Papers, as a tool to mitigate punishments clearly lacking equity, that were too cruel for the crime, and perhaps as a means to quell rebellions or insurrections when “a welltimed [sic] offer…may restore the tranquility of the commonwealth.” In short, the expectation was that pardons were to be used sparingly and with the most serious of intent. Over time, presidents have gotten in the habit of exercising that power more routinely, especially at the end of their terms in office when there is less chance of any political consequences. Even so, there is usually a paper trail from the Justice Department having reviewed particular cases to legitimate the justification for the presidential pardons.

In the case of these most recent interventions with the three servicemen, is there any evidence that President Trump’s pardons or reprieves were based on a thoughtful review of the facts? Was there any crisis? Were the punishments being meted out in these cases so out of line with the crimes committed? As best anyone can tell, the President’s decisions were as much tied to watching friendly FOX News and the fact that one of his personal attorneys also represented Navy SEAL Gallagher, as any consideration of the facts in the case.

“Prerogatives,” like the pardon power, were given the presidency by the Constitution’s framers for reasons of state necessity or as a means to ensure that the “rule of law” was seen as just in its application. It was a tool to be used decisively but rarely. Obviously, its use will always be a matter of judgment about which people may reasonably agree or not. That said, simply letting pardons happen without Congress putting the president on notice that they can and should be reviewed is a recipe for further abuse and a hazard to the rule of law itself.

Gary Schmitt

resident scholar, AEI