War Crime Pardons and Presidential (Self-) Restraint

Abstract

In 2019, then-President Trump pardoned three military officers for battlefield misconduct that could have been charged as war crimes. These were the first such pardons in American history and left many current and former members of the Armed Forces bewildered: these officers had all been charged by their military chains-of-command after sufficient evidence indicated culpability, and in two of the cases, military juries (“panels”) consisting of high-ranking officials with combat experience had convicted the officers and sentenced them to hefty federal prison terms. The granting of clemency under these circumstances has proven fraught with consequences – consequences adversely affecting the relationship between the president as commander-in-chief and the senior military leaders who cautioned against such extrajudicial mercy. Nevertheless, the president’s authority to do so, under Article II of the Constitution, is nearly without limit, and no other statute, case law precedent, or other formal restriction prevents him from doing so. This article approaches the problem from an assumption that neither the Constitution itself will be amended to carve out such crimes from the president’s reach, nor that Congress will amend the Uniform Code of Military Justice or the War Crimes Statute to chip away at this power by enacting administrative conditions on its exercise. Rather, this article suggests that the most likely and practical tool to prevent such pardons in the future is the reasonable, prudential exercise of restraint by the commander-in-chief. Several contingent factors, based on the possible timing of the pardon in relation to where the case is in the military justice process, are identified as a framework for exercising this prudential restraint notwithstanding the Constitutional authority to ignore it.