Pardons for Memorial Day?

So much hogwash has been written about the President’s pardon power that it’s hard to know where to start. One place, though, would be the New York Times’ editorial on President Trump’s use of pardons in military cases. It ran last week under a headline suggesting Mr. Trump’s general approach to pardons “may be lawful, but it is in no way normal.” In other words — blam! — before the Times even gets down to business it runs off the rails.That’s because there is no “normal” way to pardon. If the Framers had wanted to specify norms for using the pardon, they were perfectly capable of doing so. They did that for, say, treason. They laid down so many restrictions in respect of the use of the treason charge that your average prosecutor won’t go near it. When it comes to the pardon, though, the only restrictions are that it can’t be used in cases of impeachment and is allowed only for federal offenses.Other than that, the president doesn’t have to check with the Justice Department or the Senate. He doesn’t even have to clear his pardons with the New York Times. He could empty the federal prisons, if he wanted, just to save money. He can pardon members of his family (President Clinton pardoned his own brother). He doesn’t have to say why. He can lay conditions (President Kennedy freed Tomoya Kawakita on the condition he leave forever the country he betrayed).What set the Times off was the prospect that on Memorial Day Mr. Trump might pardon some war criminals. The Times had reported that Mr. Trump has asked the Justice Department’s pardon unit to “begin processing paperwork for what could be serial pardons for service members accused or convicted of war crimes.” The Times complained that Mr. Trump already pardoned a former Army lieutenant, Michael Behenna, who’d killed an Iraqi he was interrogating.The American Civil Liberties Union is quoted as saying that the pardon represented “a presidential endorsement of murder.” That’s no more true than is the idea that the ACLU’s famous defense of the brownshirts who marched in Skokie was an endorsement of the Nazis. It turns out that there are doubts about the court-martial of Mr. Behenna. The ex-GI argued that he feared the prisoner was going for his gun; Mr. Trump may simply believe him — or nurse doubts.In the most famous case of murder on the battlefield, public sentiment against singling out one of the perpetrators — Lieutenant William Calley, who was found guilty of murdering 22 unarmed civilians at My Lai in Vietnam — was widespread. President Nixon and the courts let Calley off with little time. No pardon was issued. The New York Times, though, issued an editorial suggesting that one course the government could “reasonably follow” would be a “general amnesty” for “all Vietnam war sentences.”It may be that Mr. Trump thinks something similar is in order today, that we’ve been too hard on GIs who commit crimes under duress of war. Or that the brass should’ve been held to account. If Mr. Trump thinks any of that, then the pardon is a constitutional tool. Mr. Trump may think it’s just good politics. Political considerations, after all, are not prohibited in the issuing of pardons. Mr. Trump may reckon that voter sentiment ought to be weighed.That would be no more — or less — political than, say, President Andrew Johnson’s pardon of the Confederate soldiers for treason against the United States. Nor than, say, President Carter’s pardons of the Vietnam-era draft dodgers. Mr. Carter’s Vietnam pardons sent the Times, for one, into a Class-A swoon; it justified the pardons because, it stated falsely, “nothing about Vietnam was fair to the American experience.”Nothing was fair, the Times reckoned, “not the way we went to war, not the way we conducted the war, not even the way we ended the war. Unfair laws, regulations and conduct governed the military draft during the war. Unfair treatment was felt by those who served and those who refused.” Yup, the Left was all for the Vietnam pardons. It never cost the Times a thing, either, save for its credibility when it carps about Mr. Trump’s limited use of the pardon in respect of our GIs.________Image: Drawing by Elliott Banfield, from a series of cartoons for The New York Sun, courtesy of the artist.

Pardons for Memorial Day?

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