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Practice Notes
What All Judge Advocates Should Understand About the Presidential Pardon Power
By Major Allyson J. Montgomery
The presidential pardon power has recently received both praise1 and scrutiny2 in the news for its use in pardoning individuals accused and convicted of war crimes. One need only conduct a brief internet search to find dozens of articles about former Service members pardoned for their role in committing war crimes in Iraq and Afghanistan. An active duty, publicly-apolitical judge advocate (JA) may ponder the need to understand the President’s pardon power or the process by which Service members may request a presidential pardon. However, in light of the recent pardons issued to Service members, all JAs should understand how a pardon or request for pardon may impact their practice, regardless of their current duty assignment. Before discussing the need-to-know aspects of the pardon power, consider a few scenarios.
First, imagine you are a brigade judge advocate whose unit is court-martialing a Soldier accused of killing an unarmed civilian in a combat zone. At trial, the court acquits the Soldier of the war crime, but finds him guilty of a lesser offense and sentences him to a reduction in rank. After the trial concludes, you receive a call from the convicted Soldier’s commander, who happens to be your boss. The commander, a senior member of the special forces community, wants to begin administrative proceedings to remove the Soldier from the elite community, and is considering initiating administrative separation proceedings. You advise him on both processes and believe the matter to be resolved. Soon, you hear a news story about possible presidential intervention to grant the convicted Soldier a pardon. You anticipate a subsequent call from your boss with questions about what happens next. If this scenario sounds familiar, it is similar to the one JAs faced during and after the court-martial of Chief Petty Officer Edward Gallagher.3
Next, in an alternate universe, imagine you are serving as a branch chief at the Defense Appellate Division. In the process of assisting an appellate counsel on your team, you learn about their client who is working with a civilian co-counsel to request a post-conviction pardon. The client asked the military appellate counsel questions about how a pardon would affect his remaining sentence of confinement and a dishonorable discharge. Trusting your guidance, the appellate counsel has come to you with questions about how to advise their client. If this scenario sounds familiar, it could have come from either the former First Lieutenant Michael Behenna4 or former First Lieutenant Clint Lorance5
cases.
Similarly, chiefs of justice are not immune from questions related to
pardons. The case of Major Matthew Golsteyn is an excellent example of
how the issue of pardons may arise before trial, as Major Golsteyn was
pending court-martial at the time then-President Donald Trump granted
his pardon.6 The scenarios above show that the issue of presidential pardons could arise in myriad situations, regardless of duty position.
The Basis for the Presidential Pardon Power
Turning now to the origin of the modern pardon power, it is important to note that the pardon power found in the United States’ Constitution is derived from the English Prerogative (also known as the clemency power).7 The English Prerogative was a tool of clemency used by the Crown to reduce adjudged punishment.8 Article 2, Section 2 of the Constitution vests the President with the “[p]ower to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”9
Because offenses against the United States include offenses under the
Uniform Code of Military Justice, the President may pardon Service
members for any violation of the code, including war crimes.10
The power of the President to pardon individuals of federal crimes is
expansive: “The pardon power may be exercised at any time after the
crime’s commission, either before legal proceedings, during their
pendency, or after conviction and judgment.”11
In using the pardon power, the President can fully and unconditionally
pardon the individual, which ends punishment (such as confinement) and
removes some of the negative consequences of a criminal conviction (such
as the prohibition on voting).12 The President may also exercise lesser clemency by postponing or reducing an individual’s punishment.13 Critics of the broad grant of authority have existed since the time of the Constitutional Convention.14 More recently, critics have argued that an exception to the pardon power should be enacted to prevent the President from pardoning war criminals.15
How the Presidential Pardon Power Intersects with Military Law
Whether serving as a command legal advisor, military justice manager, or defense counsel, there are several takeaways related to pardons that every JA should keep in their toolkit. First, JAs should be aware of the process by which Service members may request a pardon or sentence commutation. Second, military attorneys must recognize the effect of an approved pardon or commutation and any collateral consequences that may impact the former Service member. Finally, practitioners must understand whether and how pardoned misconduct can be used in criminal or administrative actions.
The process for a Service member convicted at a court-martial to request a presidential pardon or commutation of sentence differs from the process for individuals convicted by a federal court.16 Instead of submitting requests to the Department of Justice, Service members submit their requests to the military department responsible for exercising court-martial jurisdiction over them.17 For example, a Soldier would apply for a pardon to the Secretary of the Army through the Office of The Judge Advocate General Criminal Law Division.
Service members interested in submitting a request for pardon, or JAs advising a client on the matter, should review the Department of Justice Office of the Pardon Attorney website.18
This site contains useful information about which materials Service
members should include in the application for pardon or commutation, as
well as the current points of contact for each military department.
Though there is a difference in the procedure for submitting a request
for a pardon, all individuals seeking presidential clemency must admit
they are guilty of the criminal offense.19
Additionally, Service members must follow many of the same application
requirements as non-Service members, such as completing the pardon
application and submitting materials relevant to the request.20
If a Service member successfully receives a full pardon or a sentence
commutation, the individual’s discharge will not be affected.21
Suppose a Service member is sentenced to a bad conduct or dishonorable
discharge at trial or later receives an administrative discharge after
the conviction. In that case, the pardon will not reinstate the Service
member to active duty service or grant the individual an honorable
discharge. The discharge will remain in effect unless the Service member
petitions the relevant military department’s administrative review
agency and the agency grants the request for discharge upgrade.22
For example, pardoned Soldiers would apply for a discharge upgrade to
the Army Review Board Agency.23 Depending on the pardon or commutation’s timing, a pardoned Service member may be ineligible to seek legal help in applying for a discharge upgrade from either the Trial Defense Service or the Legal Assistance Office.
Military justice practitioners and command legal advisors should note the provisions in the Manual for Courts-Martial relevant to pardons. Rule for Courts-Martial (RCM) 907(b)(2)(D) bars the Government from prosecuting Service members for pardoned misconduct.24 Additionally, RCM 1001(b)(3) prohibits the Government from offering pardoned misconduct during the presentencing proceeding.25 Military Rule of Evidence (MRE) 609(c) prohibits the Government from using a pardoned summary court-martial conviction as evidence to support a witness’s character for untruthfulness.26
The use of pardoned misconduct for administrative action is not as
clear. Whether or not a command may take administrative action against a
pardoned Service member—including initiation of separation for the
pardoned misconduct—requires the legal advisor to review their
service-specific regulations relevant to administrative boards and
separation procedures. For Army JAs, the definition of admissible
evidence found in Army Regulation 15-6 does not prohibit the use of
pardoned misconduct for administrative actions.27
However, many factors bear on the decision whether to recommend a
commander take administrative action against a pardoned Service member,
including the type of action, period of enlistment, date of misconduct,
and timing of pardon. Judge advocates should consider contacting their
service-specific human resources command if confronting this situation.
Conclusion
Judge advocates advising their clients about pardons will not only face
questions about the power, process, and effect of such presidential
action. They will also face the prospect of significant media attention,
requests for information from higher echelons, and questions from the
Service member’s family. In high-profile cases, film producers or news
outlets may even approach JAs for comment. For instance, in the lead-up
to the pardon granted to former First Lieutenant Lorance, the Starz
documentary, Leavenworth, featured his story.28 Additionally, information about former First Lieutenant Behenna, Chief Petty Officer Gallagher, and Major Golsteyn appeared on Fox News broadcasts.29 Media attention may not be limited to national outlets, as seen in articles by international human rights advocates about these recent pardons.30
Most JAs will never encounter a presidential pardon in their careers. Still, if the issue arises, JAs should remember they are not alone when advising clients about the pardon power. Subject matter experts exist in each of the respective military departments, and JAs should seek their counsel. Because the possibility of a pardon carries with it the potential of substantial media attention, JAs should consult their public affairs office for guidance on best practices. If any question exists about whether a client is eligible for assistance in requesting a pardon, the attorney concerned should speak with the Trial Defense Service or Legal Assistance Policy Division for guidance. TAL
MAJ Montgomery is the special victim prosecutor at 10th Mountain Division and Fort Drum at Fort Drum, New York.
Notes
1. Justin Baragona, Fox’s Pete Hegseth Applauds Trump for Pardoning War Criminals: “God
Bless the President,” Daily Beast (Dec. 23, 2020, 11:24 AM), https://www.thedailybeast.com/foxs-pete-hegseth-applauds-trump-for-pardoning-war-criminals-god-bless-the-president?ref=scroll.
2. Laurel Wamsley, Shock and Dismay After Trump Pardons Blackwater Guards Who Killed 14 Iraqi Civilians, NPR (Dec. 23, 2020, 5:44 PM), https://www.npr.org/2020/12/23/949679837/shock-and-dismay-after-trump-pardons-blackwater-guards-who-killed-14-iraqi-civil.
3. Andrew Dyer, Navy SEAL Eddie Gallagher, Neither Pardoned Nor Cleared by Trump,
Says Navy Is Retaliating Against Him, San Diego Union-Trib. (Nov. 20, 2019, 7:46 PM), https://www.sandiegouniontribune.com/news/military/story/2019-11-20/navy-seal-eddie-gallagher-neither-pardoned-nor-cleared-by-trump-says-navy-retaliating-against-him; Keith Zubrow, President Trump and the Case of Navy SEAL Eddie Gallagher, CBS News (Mar. 1, 2020, 7:23 PM), www.cbsnews.com/news/president-trump-navy-seal-eddie-gallagher-60-minutes-2020-03-01/.
4. Bill Chappell, Trump Pardons Michael Behenna, Former Soldier Convicted of Killing
Iraqi Prisoner, NPR (May 7, 2019, 10:17 AM), https://www.npr.org/2019/05/07/720967513/trump-pardons-former-soldier-convicted-of-killing-iraqi-prisoner.
5. Michael A. Robinson, Trump’s Pardon of Two Former Army Officers Has Sparked New
Controversy. Here’s Why., (Nov. 17, 2019),
https://www.washingtonpost.com/politics/2019/11/17/trumps-pardon-two-former-army-officers-has-sparked-new-controversy-heres-why/.
6. Id.
7. Laura Palacios, The Presidential Pardon Power: Interpreting Its Scope and Enacting an
Effective Solution to Limit Its Potential for Abuse, 40 T. Jefferson L. Rev. 209, 214–17 (2018).
8. Id. at 215.
9. U.S. Const. art. II, § 2, cl. 1.
10. Michael Davidson, The President’s Pardon Power, Mil. Rev., May–June 2020, at 127, 129.
11. Palacios, supra note 7, at 217.
12. Davidson, supra note 10, at 129.
13. Palacios, supra note 7, at 217.
14. Id. at 218.
15. Dan Maurer, Should There Be a War Crime Pardon Exception?, Lawfare (Dec. 3, 2019, 9:31 AM), https://www.lawfareblog.com/should-there-be-war-crime-pardon-exception.
16. Frequently Asked Questions, U.S. Dep’t of Just., https://www.justice.gov/pardon/frequently-asked-questions (Dec. 7, 2021) [hereinafter DoJ FAQs].
17. Id.
18. Id.
19. Palacios, supra note 7, at 217.
20. DoJ FAQs, supra note 16.
21. Id.
22. Id.
23. Id.
24. Davidson, supra note 10, at 129; Manual for Courts-Martial, United States, R.C.M. 907(b)(2) (2019) [hereinafter MCM].
25. Davidson, supra note 10, at 129; MCM, supra note 24, R.C.M. 1001(b)(3)(A).
26. Davidson, supra note 10, at 129; MCM, supra note 24, M.R.E. 609(c).
27. U.S. Dep’t of Army, Reg. 15-6, Procedures for Administrative Investigations and Boards of
Officers
para. 3-7 (1 Apr. 2016).
28. Leavenworth (Check Point Productions & Dallas Drone Pros 2019).
29. Matt Ford, The Fox & Friends Pardon for War Crimes (May 8, 2019), https://newrepublic.com/article/153849/fox-and-friends-pardon-war-crimes.
30. E.g., UN Criticises Trump’s Pardons for Blackwater Guards Jailed Over Iraq Killings, BBC (Dec. 23, 2020), https://www.bbc.com/news/world-us-canada-55424397.