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
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.
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
1. Justin Baragona, Fox's
Pete Hegseth Applauds Trump for Pardoning War Criminals: "God Bless the President," Daily Beast (Dec. 23, 2020, 11:24
2. Laurel Wamsley, Shock
and Dismay After Trump Pardons Blackwater Guards Who Killed 14 Iraqi
Civilians, NPR (Dec. 23, 2020, 5:44 PM),
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),
Keith Zubrow, President Trump and the Case of Navy SEAL Eddie Gallagher,
CBS News (Mar. 1, 2020, 7:23 PM),
4. Bill Chappell, Trump
Pardons Michael Behenna, Former Soldier Convicted of Killing Iraqi Prisoner, NPR (May 7, 2019, 10:17 AM),
5. Michael A. Robinson, Trump's Pardon of Two Former Army Officers Has Sparked New Controversy. Here's
Why., (Nov. 17, 2019),
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
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,
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
19. Palacios, supra
note 7, at 217.
20. DoJ FAQs,
supra note 16.
24. Davidson, supra
note 10, at 129; Manual for
Courts-Martial, United States, R.C.M. 907(b)(2) (2019)
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).
(Check Point Productions & Dallas Drone Pros 2019).
29. Matt Ford, The
Fox & Friends Pardon for War Crimes (May 8, 2019),
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.