The pardon and clemency powers granted to the president in the Constitution serve our citizenry well. It allows for correcting an injustice or acknowledging that the lifetime consequences of a felony conviction can be disproportionate to the good life the person led following completion of the sentence. It also recognizes that some convictions were the result of unjust laws such as existed in the Jim Crow South.
The Office of the Pardon Attorney within the Department of Justice evaluates petitions for pardons and clemency. A number of factors are considered, there is an FBI background investigation, and then the pardon attorney can submit those petitions considered meritorious to the president with his recommendation. The president is not bound by the recommendation or even the procedure itself.
Some presidents have abused the pardon power even if there are no limitations. Bill Clinton pardoned his brother for drug convictions, something that was very controversial. Even more controversial was Clinton’s pardon of Marc Rich. Rich was under indictment for wire fraud, racketeering and tax fraud but fled the country before he could stand trial. Clinton bypassed the pardon attorney’s office and ignored his advisers in issuing the pardon, which arguably was one of the darkest blemishes of Clinton’s presidency.
As of July 2019, President Donald Trump has issued fifteen pardons. In my opinion, two are questionable, and reasonable people can disagree: former Arizona sheriff Joe Arpaio, and Dinesh D’Souza, a prominent Christian writer and former college president. Arpaio was pardoned after his conviction for contempt of court but before sentencing. D’Souza pleaded guilty to making illegal campaign contributions. Trump said that D’Souza had been unfairly treated by the justice system without offering any evidence to support that assertion. Trump has also said as much concerning others convicted of corruption related crimes, to include the most recent case involving his friend Roger Stone.
Trump has wielded his power to pardon his friends in conjunction with the Russia investigation, to include Paul Manaforte and General Mike Flynn, by hinting that if they hold out and don’t cooperate with the government, he will take care of them. Manaforte, Trump’s former campaign manager, is serving a seven year sentence for a variety of criminal acts, and Flynn will be sentenced in the coming weeks. This follows his guilty plea to lying to FBI agents when interviewed about his conversation with the Russian ambassador shortly after Trump named him National Security Adviser.
Last week Trump pardoned two army officers, Clint Lorance and Mathew Golsteyn, and restored the rank of a navy chief petty officer Eddie Gallagher. Lorance had been convicted of murdering two civilians in Afghanistan and was serving a nineteen year sentence. Golsteyn was awaiting a military court martial for murdering a suspected Taliban bomb maker. Gallagher had originally been charged with murder but was acquitted of those charges and convicted of a much less serious offense. The navy had planned to take additional administrative action against him until Trump stepped in. In the Gallagher’s case, Trump had also intervened prior to his trial in ordering Gallagher’s confinement be less restrictive.
The Secretary of Defense and Secretary of the Army met with Trump shortly before the pardons were issued to try and talk him out of it. They understand the importance of good order and discipline in our military. In all three cases it was their own men who reported the wrongdoing, something that requires a good bit of moral courage. General George Patton said, “Moral courage is the most valuable and usually the most absent characteristic in men.”
Trump opined about the difficulties with fighting an enemy in civilian clothes, about the stresses associated with combat, instant decision making, and the fog of war. I have no argument with him in the abstract. But the military conducted investigations that led to criminal charges. Should that be ignored? What message does Trump send to the American fighting men and women when he subverts their own commanders? Former chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, said, “Absent evidence of innocence or injustice the wholesale pardon of US service members accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us.”
As the Soviet Army approached Berlin in 1945, the German people ran toward the U.S. Army. And the reason they did is that they knew our army followed the laws of war, that they stood a good chance of being treated humanely unlike the atrocities the Soviets committed, atrocities sanctioned by their officers at the highest levels. In wars such as Vietnam, Afghanistan and Iraq, where we are trying to develop sources and win over the hearts and minds of the population by offering a better way than our enemies, Trump’s actions can only hamper that effort.
It would not surprise me if after the 2020 election, win or lose, considering Trump has nothing to lose at that point, he pardons everyone convicted from the Mueller probe, including anyone facing potential indictment---despite no evidence at this point of misconduct or violations of due process stemming from the investigation. Our criminal justice system is not perfect, but it is fair and has safeguards---including the power of pardon when judiciously applied.