Leahy, Whitehouse Query DOJ About President Trump’s Controversial War Crimes Pardons
. . . Ask What Role The Office Of Pardon Attorney Played In Highly Irregular Decision
(TUESDAY, Nov. 26, 2019) – Senators Patrick Leahy (D-Vt.) and Sheldon Whitehouse (D-R.I.) are asking the Department of Justice’s Office of Pardon Attorney what role it played in President Trump’s extraordinarily controversial decision to pardon U.S. soldiers charged or convicted with serious war crimes. In light of U.S. military leaders’ vocal opposition to President Trump’s interventions in these cases, Leahy and Whitehouse are seeking answers about what advice the President received – and from whom – in making this decision to exercise his clemency powers.
The senators wrote: “We write to determine what role your office played in President Trump’s recent decision to pardon military service members convicted or charged with war crimes. While the President possesses broad pardon powers, these pardons were issued in the face of strong opposition from senior military officials, who warned that such pardons would undermine the U.S. military justice system and shake faith in our military’s commitment to abide by the laws of war. Given your office’s institutional role and expertise for over 125 years in guiding presidents in the exercise of their pardon powers, we write to inquire whether, and to what extent, your office was involved in these matters.”
The letter continues: “The President’s pardon powers are virtually absolute. That is precisely why safeguards must be in place to ensure that they are wielded judiciously – institutional safeguards like your office, which exists to ensure that the President’s pardon powers are exercised fairly and in the interests of justice. Given our obligation to conduct oversight of the Justice Department, we request written answers to the following questions no later than December 13th.”
A signed copy of the letter can be found here. The full text of the letter is copied below.
November 26, 2019
Acting Pardon Attorney
U.S. Department of Justice
Office of the Pardon Attorney
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Ms. Sargent-Burns,
We write to determine what role your office played in President Trump’s recent decision to pardon military service members convicted or charged with war crimes. While the President possesses broad pardon powers, these pardons were issued in the face of strong opposition from senior military officials, who warned that such pardons would undermine the U.S. military justice system and shake faith in our military’s commitment to abide by the laws of war. Given your office’s institutional role and expertise for over 125 years in guiding presidents in the exercise of their pardon powers, we write to inquire whether, and to what extent, your office was involved in these matters.
President Trump intervened in the cases of three military service members either charged with or convicted of serious war crimes. He pardoned and freed Army First Lt. Clint Lorance, who was serving a 19-year sentence for ordering his subordinates to fatally fire on unarmed civilians. He pardoned and stopped the trial of Army Green Beret Maj. Matt Golsteyn, who confessed to and was charged with executing an unarmed detainee and immolating his corpse. And he restored the rank of Navy SEAL Eddie Gallagher, who was charged with shooting unarmed civilians and killing a captured teenage combatant with a knife, and ultimately convicted of posing in a photograph with a dead captive.
When President Trump’s plan to intervene in these cases was first reported in early November, the Department of Defense was so alarmed that Secretary of Defense Esper and other senior military officials reportedly orchestrated a lobbying effort to dissuade the President from doing so. The Pentagon’s concerns about President Trump’s pardons have been echoed by many respected U.S. military figures. Retired General Martin Dempsey, former Chairman of the Joint Chiefs of Staff, said the “wholesale pardon of US service members accused of war crimes signals . . . that we don’t take the Law of Armed Conflict seriously,” and is an “abdication of moral responsibility.” Retired General Charles Krulak, former Commandant of the Marine Corps, stated that these pardons could endanger our troops by “alienating populations whose support the United States needs…and providing a propaganda tool for extremists who wish to do us harm.” Most recently, in resigning his position as Secretary of the Navy over this issue, Richard Spencer wrote in a letter to the President that he “no longer share[s] the same understanding with the Commander in Chief . . . in regards to the key principle of good order and discipline,” and pointedly reminded the President that “The rule of law is what sets us apart from our adversaries.”
The U.S. military establishment’s vocal opposition to the President’s interventions in these cases raises serious questions about what advice President Trump received – and from whom – in deciding to exercise his clemency powers. Reports indicate that President Trump’s views about these cases were shaped early on by a Fox News personality and advocates for the three soldiers. Senior Pentagon officials, left out of White House discussions until recent weeks, believed the President was being provided misleading and even false information. The White House reportedly reached out to your office about these cases once in May, but it is unclear whether there was any further contact between your office and the White House, or whether your office ultimately provided your recommendations to the President.
The President’s pardon powers are virtually absolute. That is precisely why safeguards must be in place to ensure that they are wielded judiciously – institutional safeguards like your office, which exists to ensure that the President’s pardon powers are exercised fairly and in the interests of justice. Given our obligation to conduct oversight of the Justice Department, we request written answers to the following questions no later than December 13th:
Did the White House reach out to your office on May 17, 2019, about the cases of Army First Lt. Clint Lorance, Army Green Beret Maj. Matt Golsteyn, and Navy SEAL Eddie Gallagher, as reporting indicates?
a. If so, was this the first time the White House reached out to your office about these three cases?
b. If not, when was the first time the White House reached out to your office about these three cases, if at all?
Did the White House ask for your recommendation about whether to issue pardons in these cases? Did the White House express the President’s intent to issue pardons in these cases, regardless of your input and recommendations, as reporting indicates?
Did your office provide recommendations to the White House about whether the President should exercise his pardon powers in these three cases?
a. If so, what were your recommendations? Please describe your recommendations in each of the three cases, and the rationale for each recommendation. To the extent possible, please provide copies of documents memorializing your recommendations in each of the three cases.
b. If so, when were those recommendations conveyed to the White House?
c. If so, did your office either meet or attempt to meet with the President or anyone else in the White House to explain or discuss your recommendations with respect to the three cases?
d. If your office did not provide recommendations in these three cases, why not?
Was anyone outside your office at the Justice Department involved in providing advice and recommendations to the White House regarding these three cases? If so, who, and what role did they play? Were there any attempts to channel communications between your office and the White House on these matters through another division or office in the Justice Department? If so, why?
To what extent was your office communicating and coordinating with the Department of Defense with respect to these three cases? Were you soliciting information or other input and recommendations from the Defense Department about these three cases? If so, what information and recommendations did you request and receive from the Defense Department?
Section 9-140.110 of the Department of Justice’s Justice Manual states that your office “receives and reviews all petitions for Executive Clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine or restitution and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case.”
a. Was there a petition for Executive Clemency submitted to your office or the Justice Department in any of these three cases?
b. Has the Office of the Pardon Attorney ever recommended a presidential pardon or commutation for a military service member convicted of war crimes? If so, please provide details about those cases and why the Office of the Pardon Attorney recommended a pardon or commutation.
c. Has the Office of the Pardon Attorney ever recommended a presidential pardon when an individual has not yet been convicted and has charges pending? If so, please provide details about those cases and why the Office of the Pardon Attorney recommended a pardon.
d. How many of the pardons or commutations issued by President Trump during his term thus far involved a petition for Executive Clemency to your office and followed the process described in Section 9-140.110?
Thank you for your prompt attention to this matter.
Patrick Leahy Sheldon Whitehouse
United States Senator United States Senator
 Dave Philipps, Trump’s Pardons for Servicemen Raise Fears That Laws of War Are History, NY Times (Nov. 16, 2019), available at https://www.nytimes.com/2019/11/16/us/trump-pardon-military.html.
 Nicole Gaouette et al., Trump Ignores Pentagon Advice and Intervenes in Military War Crimes Cases, CNN (Nov. 18, 2019), available at https://www.cnn.com/2019/11/15/politics/trump-war-crimes-intervenes/index.html.
 Kyle Rempfer, Army Officer Convicted of Murder in Afghanistan to Get Another Look by Civilian Court, Army Times (July 1, 2019), available at https://www.armytimes.com/news/your-army/2019/07/01/army-officer-convicted-of-murder-in-afghanistan-to-get-another-look-by-civilian-court/.
 Leo Shane III et al., Trump Grants Clemency to Troops in Three Controversial War Crimes Cases, Military Times (Nov. 16, 2019), available at https://www.militarytimes.com/news/pentagon-congress/2019/11/16/trump-grants-clemency-to-troops-in-three-controversial-war-crimes-cases/.
 Dave Philipps, Navy SEAL Chief Accused of War Crimes Is Found Not Guilty of Murder, NY Times (July 2, 2019), available at https://www.nytimes.com/2019/07/02/us/navy-seal-trial-verdict.html.
 Gaouette, supra note 2.
 Philipps, supra note 1.
 David S. Cloud, Senior Military Officers Rebel Against Trump Plan to Pardon Troops Accused of War Crimes, LA Times (May 22, 2019), available at https://www.latimes.com/politics/la-na-pol-pentagon-oppose-trump-pardon-murder-warcrimes-20190522-story.html.
 Gen. Krulak Statement on Trump's Military Pardons, Human Rights First (Nov. 15, 2019), available at https://www.humanrightsfirst.org/press-release/gen-krulak-statement-trumps-military-pardons.
 Navy Secretary Richard Spencer's Letter to the President Acknowledging His Termination, CNN (Nov. 24, 2019), available at https://www.cnn.com/2019/11/24/politics/read-navy-secretary-richard-spencer-resignation-letter/index.html.
 Dan Lamothe & Josh Dawsey, “Insurgents” Lobbied Trump for War Crimes Pardons with Little Pentagon Involvement, Officials Say, NY Times (Nov. 21, 2019), available at https://www.washingtonpost.com/national-security/insurgents-lobbied-trump-for-war-crimes-pardons-with-little-pentagon-involvement-officials-say/2019/11/21/b6a0c62e-0c75-11ea-bd9d-c628fd48b3a0_story.html.
 Dave Philipps, Trump May Be Preparing Pardons for Servicemen Accused of War Crimes, NY Times (May 18, 2019), available at https://www.nytimes.com/2019/05/18/us/trump-pardons-war-crimes.html.
 Philipps, supra note 12.
David Carle: 202-224-3693
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