Prof. Dan Maurer writes here on Lawfare on whether Congress can and should stymie the exercise of executive clemency in war crimes cases. Excerpt:
Misuse of the pardon power by granting clemency to U.S. military war criminals unreasonably risks harm to the civil-military relationship within the executive branch; it may promote (or at least acquiesces to) lawlessness by warfighters during armed conflict; and it dismisses the credibility, legitimacy, and expertise of military professionals managing the investigation, prosecution, and punishment of individuals who not only have a legal and moral duty to protect noncombatants from the dangers of warfare but are specifically trained to do so. The threat of major war never fully disappears, and [Donald J.] Trump’s three war crime pardons (even if not charged as “war crimes”) were a shocking proof-of-concept that legal forgiveness of such categorically distinct crimes can be unjustly used for political gain or unprincipled grounds. To keep these pardons as ahistorical outliers, Congress can and should publicly commit to preventing the dangers created when a president’s pardon power collides with his duties as the commander in chief.
An unfortunately timely essay, worth studying.
"The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."
ReplyDeleteEx parte Garland, 71 U.S. 333, 380, 18 L. Ed. 366 (1866)