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Saturday, November 16, 2019

Leavenworth, Breaking News

The following is by my FIU colleague Eric Carpenter, who has been live-blogging the Starz documentary.

Yesterday, President Trump pardoned Clint Lorance, along with Major Matthew Golsteyn (charged with the summary execution of a detainee). He also ordered the promotion of Special Warfare Operator First Class Edward Gallagher to the grade of E-7, the rank he held before he was court-martialed for murdering a detainee (he was acquitted of that charge but convicted of another charge, and the grade reduction was punishment for that other charge).

This was a terrible decision. He basically ignored the advice of his military counselors and followed the advice of Sean Hannity, thereby politicizing a justice system that already has issues with public confidence. The current coverage (and the coverage from when he thought about doing this earlier in the year but backed down) lays out many of the reasons why this was a bad decision. Further, by taking these actions, Trump may have committed a war crime.

All that aside, the press release announcing this decision shows that those giving Trump advice don’t really understand the military justice system. When the test balloon for the pardons was floated last week, the first idea was that Trump would disapprove the findings in Lorance’s and Gallagher’s courts-martial. An odd feature of the courts-martial is that the authority who convenes the court-martial must later approve the findings. This is a vestige from when a court-martial provided non-binding advice to convening authorities. The convening authorities would then approve or disapprove of those findings. Until 1916, commanders could send back acquittals or light sentences for a retrial. All of that has now gone away and the act is largely ceremonial. Here, the convening authorities had already approved these findings. The President could not undo that.

Someone must have figured that out because Trump looked to other presidential powers so that he could act on these cases. The President can pardon, and what he did with Lorance was within that power.

I am in the camp that the President can only pardon those who have been convicted, and so what he did with Golsteyn was not within that power. (This is one of those exercises in mental gymnastics, as we will never know the answer until a later administration tries to prosecute someone that an earlier administration has granted a pre-emptive pardon.)

He has another legitimate source of authority, though. Golsteyn’s case was still active. The President, as commander-in-chief, can withhold and dismiss any court-martial charges. Unlike what we see with the Department of Justice where the President is supposed to stay hands-off, there is no norm that the President should not get involved in court-martial proceedings. He is the commander-in-chief, and courts-martial are a tool of discipline. He is not allowed to unlawfully influence a court-martial or otherwise violate a service-member right to due process (for example, he is not allowed to tell subordinate commanders to take harsh action in a case or tell panel members to return a verdict of guilt), but anytime he disagrees with how a case is being handled, he withhold the case to himself and take whatever action he feels is appropriate.

He could have done that here. He could have then discharged Golsteyn, thereby ending the military’s jurisdiction over Golsteyn, which would prevent a subsequent president from reinstating the charges.

Turning to Gallagher, the President can grant clemency to Gallagher and reinstate his rank that way. Why he thought he had to order that Gallagher be promoted is beyond me, and Congress may have limited his authority to do that, anyway.

I think that is what happens when you ignore the advice of the experts and instead rely on talking heads to solve these problems.


Posted by Howard Wasserman on November 16, 2019 at 11:14 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink


Interesting developments indeed. My understanding is that misbehavior of American troops in Afghanistan, and events which maybe are not misbehavior but end up hurting innocent Afghan civilians anyway, are both common and a major part of Taliban propaganda. Sending the signal that American won't be punished if they violate the rules of war is probably not a smart decision even from the most narrowly American point of view. (Leaving aside considerations of morality, etc.)

Posted by: Jr | Nov 16, 2019 1:46:35 PM

Important post.Complicated issue indeed. The president has the power to pardon etc.... All in accordance with the constitution ( for offenses against the US, or federal offenses actually). Surly, it can't be overwhelming and systematic of course. This can't be considered or be in accordance with that strategic constitutional provision of : faithfully execute the laws. Yet, he can, he should grant pardon and alike. When then ? This should be based on case by case examination, with clear and transparent and coherent explanation or reasoning granted publicly or to the public. And when yes, when not ? Well:

If the soldier or commander, has faced, very stressed situation, and he has exercised operational discretion. Sometimes can be pardoned. If the act is purely a criminal act, having no other military or operational purpose, but crazy and criminal instincts ( like looting, like raping with no operational justification whatsoever ) he should face trial, not to be pardoned. This is fundamental observation.

Just concerning the related article ( just security).It is evoking International norms. One should treat it carefully. Internationally, those that are prosecuted, are typically high officials, or high commanders, for the most serious crimes, committed by the highest ranks. low ranked soldiers and commanders are typically not investigated and prosecuted.Yet, In domestic law, for international crimes, it is different.


Posted by: El roam | Nov 16, 2019 1:05:39 PM

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