War Crime Clemency: The President's Self-Defeating Pardon

A president’s long-recognized discretion to pardon just about any offense for literally any reason at almost any time leaves little room to argue that such power can be constrained any further by law. Supreme Court decisions, scholarship, and presidential precedent over the last two centuries amply (though grudgingly) support a theory of nearly unilateral and “unfettered” authority, perhaps a last vestige of the British monarchy left in the hands of a democratically accountable chief executive – controversial, but nevertheless constitutional. But when it comes to a specific class of misconduct – war crimes – interpreting and applying this constitutional power requires a second look, for it invariably intersects with another Article II power – a president’s role and authority as the military’s commander-in-chief. Rather than amplifying this other long-recognized discretionary power to wage war, the pardon power arguably weakens it under certain conditions. This intersection is not merely an academic puzzle on the nature of presidential power; it is a collision of a president’s right with a series of quite specific presidential responsibilities and authorities over the military’s criminal justice system he has only because Congress believes that a commander-in-chief should wield them. The collateral damage from this collision ironically harms the very institution and profession the president relies on for military action, advice, and ability. Whether this damage is historically contingent on particular presidents or is a predictable consequence of all such pardons is a question that cannot be answered yet. That is because President Trump’s three war crime pardons in 2019 were historic firsts: never before had a president pardoned any soldier for conduct incidental to combat action that violently victimized a non-combatant who was otherwise protected by the international laws of war from unlawful armed force. They were a proof of concept that a president could indeed “go there;” but they were also a proof of consequences not yet fully explored in the literature and not at all by the courts. In exercising his singular strength by pardoning war crimes, a president’s power and credibility is paradoxically weakened for three reasons: he ignores or rejects the duties imposed on the very institution he relies on to achieve political objectives through armed force; he devalues the professional expertise of his military agents; and he delegitimizes the military criminal justice system that this institution relies on to promote, enforce, and signal its professional commitments to certain martial values, norms, and requirements – including adhering to the laws of war. Flexing muscle on one arm atrophies muscle on the other. The contrary view is that constitutionally required civilian control of the armed forces means his discretion to flex or atrophy his credibility with the military whenever he wants. Trump’s war crime pardons offer an opportunity to explore whether common arguments and conventional applications of the pardon power are entirely relevant to this class of offenses and this kind of offender. This article suggests, because they lead to a self-defeating paradox (the collision between two independent and stout express Article II powers), that they are categorically distinct; it sketches this new prudential argument for curtailing war crime pardons based on a president’s “standing” or relationship he necessarily bears to the military as its commander-in-chief and to the conduct he absolves. Any future case for judicially invalidating such a pardon, for legislating a containment strategy to (at least) deter such a pardon, or for adopting a set of principles for presidential self-restraint, must account for this challenge.