Is Trump Using the Presidential Pardoning as a Form of Immunity?

On 15 November 2019, President Trump once again invoked a vastly unchecked and virtually unlimited constitutional power, the presidential pardon. Trump, in executing his Article 2, Section 2 authority, cleansed three former US soldiers of war crimes for which they were either convicted of or alleged to have committed. In doing so, Trump has raised the question of whether or not he is using the constitutional authority of pardoning as a form of immunity for US Forces in the War on Terror. The War on Terror, a US-led engagement nearly two-decades-old, has witnessed countless revelations and incidences of war crimes by the United States, seemingly with impunity.

On Friday, with the smooth sweep of his pen, Trump absolved First Lt Clint Lorance and First Class Edward Gallagher of convictions stemming from war crimes, cases for which the two had been adjudicated guilty by a military court. The third soldier, Major Mathew Golsteyn, had been awaiting trial on murder allegations.

Lt. Lorance had been convicted on two counts of murder and a count of attempted murder stemming from orders Lorance had given to engage three unarmed men, who the prosecution characterized as civilians. Though it was later determined that all three men could be linked to either enemy combatants or attacks against US forces, Lorance had no knowledge of that at the time he ordered his team to fire upon them. At trial, some of the soldiers under Lorance’s command testified that the three men presented no threat.

The second soldier, First Class Edward Gallagher, a Tier 1 operator with the Navy, had been accused of a litany of war crimes including murdering a Prisoner of War (POW). However, at trial the prosecution’s star witness confessed to having committed the murder, thus clearing Gallagher. Consequently, Gallagher was acquitted on all of the most serious allegations. However, he was found guilty on the charge of having posed for a celebratory picture with the POW’s corpse. Trump not only pardoned Gallagher but reinstated him as Chief Petty Officer.

The third and possibly the most significant of the three pardons was for Major Mathew Golsteyn, another Tier 1 operator with the Army. The former Green Beret was awaiting trial on allegations that he killed an unarmed combatant who had just been released from custody.

Golsteyn’s team and accompanying US forces had been taking heavy casualties and fatalities from enemy snipers and improvised explosive devices, IEDs. One of those IED incidents claimed the lives of two Marines, following which Golsteyn and his team captured a Taliban bomb maker.

Though a local tribal leader identified that the POW was a known Taliban bomb maker, for reasons unknown, the bomb maker was released back to the battlefield. Following which, Golsteyn is alleged to have murdered him.

Initially, Golsteyn characterized the encounter as an ambush, and thus the killing was lawful. Upon his return to the US, the Pentagon determined that Golsteyn had not violated any laws or rules of engagement. He was, however, discharged from service for behavior unbecoming an officer.

While the case should have ended there, Golsteyn kept the issue alive by conducting various interviews in which his narrative of events continually seemed to change.

This included an attempt to explain a failed polygraph conducted as a pre-employment measure by the CIA. The CIA’s version and the current accepted chain of events is that Golsteyn escorted the bomb maker off-base, killed him, and buried the body. Later, he along with other soldiers dug the body back up, set it on fire, and tossed the remains into a garbage pit.

Throughout the US-led War on Terror, revelations of war crimes by the United States have steadily surfaced, with convictions, especially for those truly responsible, falling far behind the number of incidents.

From the US torture program to the CIA black site network to the egregious actions at Abu Ghraib prison in Iraq, not to mention all of the evidence which the US never intended to reveal to the public, but Julian Assange did.

It should be noted, given the United States’ move to forgive the commission of war crimes, obviously, no actual criminal liability would ever attach for those involved in the incidents which Assange exposed, and thus what is the true and actual reason for which the US wants Assange?

The Founding Fathers believed the authority to pardon was consistent with the true nature of justice and was a necessary measure to counter the inevitable breakdowns in the justice system.

For most, the line dividing a just pardon and the issuance of immunity is black and white. For Trump, however, it’s more of a grey line which he consistently seems bent on bending as far as it can conceivably go.

Trump’s use of the presidential pardon to clear war crime convictions as well as to prevent the truth determining process to unfold for such allegations is tantamount to providing immunity for such crimes.

Additionally, his pardons have seemingly divided members of the military. The Pentagon’s response to Trump’s move was little more than ‘He’s the President, we will do as we are told’’.

Trump’s three pardons on Friday, are not his first pardons for clearing war crime convictions, or which establish a basis of immunity and not justice.

In May, Trump issued a pardon for First Lt. Michael Behenna, a former Army officer who had been convicted for killing a naked and unarmed Iraqi POW. Before that, in April, Trump pardoned Scooter Libby, a member of the Bush – Cheney White House, whose federal conviction stemmed from the illegal disclosure of a covert CIA operative. Or in other words ‘leaking information to the Press’, something Trump has demonstrated absolute animosity for.

Trump’s first invocation of his Presidential pardon power was for former Arizona sheriff Joseph Arpaio, who had been convicted but not yet sentenced. Arpaio was one of America’s most degrading law enforcement officials, who essentially believed that it was impossible for law enforcement to commit human rights abuses. Thus, Arpaio ran one of America’s most inhumane and deplorable detention sites, which he publicly and proudly called a “concentration camp”.

The Presidential pardon has been utilized by virtually every President since the inception of the Constitution. Though the original intentions for including the pardon into the Constitutional powers of the Presidency was for the furtherance of justice, it has more often than not been used as an instrument of political gain as well as for personal reasons.

Trump’s grant of immunity is the earmark of most of his pardons. Trump’s construct of immunity by pardon, however, actually echoes back to his Republican predecessors.

President George Bush also wielded the pardon as an immunity measure. As Vice-President under Ronald Reagan, Bush was well aware of the plethora of criminal activity which essentially comprised the Reagan Administration. One of the most prolific and famous being the Iran – Contra Affair, in which the Reagan White House funnelled weapons to Iran as well as funded the Contras; a group which would be classified as a narco-terrorist organization today. On Christmas Eve 1992, Bush pardoned all of those involved in the criminal enterprise; both convicted and awaiting trial.

Pardons are rarely granted for a severe or egregious crime, a felony, especially one which had a victim, minus some personal or political interest.

It is nearly unheard of for a President to use his pardon powers to correct a true and genuine miscarriage of justice sustained by an ordinary innocent citizen who has been wrongfully convicted.

This reality should be seen in light of the fact that the United States is guilty of producing a significant percentage of wrongful convictions.

A 2017 Department of Justice funded project concluded an estimated 10% of convictions were wrongful. However, not a single citizen in recent history to have been proven innocent has found justice through a pardon.

Though America’s Founding Fathers strived, in the creation of the US Constitution, to ensure a Republic as far removed from despotism as possible, the Presidential pardon having its origins in the royal fiat has proven to manifest itself to the contrary.

The United States Supreme Court historically labelled the Executive power to pardon as an “act of grace”. However, Presidents have consistently brandished it with far more prejudice and self-interest. Thus, the Supreme Court, in the latter half of the 20th century, seemed to return to the issue, attempting to redefine the instrument of the pardon as circumscribed by its inability to offend the nature or substance of the very Constitution which created it. Though, that is essentially where the Court stopped.

Offending the Constitution, or even the very tenets of justice, does not have a very influential role in the decision making process of US Presidents in general but is most patently visible via their exercise of the pardon.

Trump’s use of the Presidential pardon, in most instances, has been as far removed from its intended role to correct a misstep committed by the judiciary as it could possibly be.

War crimes, corrupt politicians, a violator of human rights, politically connected criminals, and those who Trump had some personal connection to have all benefited from the Constitution due to Trump’s position.

While it is highly unlikely that this is what Alexander Hamilton meant when he argued “humanity and good policy” mandated “the benign prerogative of pardoning”, it is and has been the reality of contemporary American leadership.

Immunity, or even the mere allusion of its existence, for incredibly severe and intolerable crimes, such as some of those for which Trump has absolved, is arguably, not consistent with the mandate to “faithfully execute the Office of the President of the United States”.

Without a doubt though, Trump is absolutely in no way concerned about any of that. His previous pardons already establish the fact that he grants immunity not justice. Which is once again founded more firmly in his self-interest than anything else, as Trump has already asserted that he believes he has the “absolute right to pardon” himself.