Of all the constitutional powers enjoyed by the U.S. president, perhaps none is so vulnerable to abuse as the presidential pardon. As a check against the potential abuse of power by the judicial branch, it serves an important constitutional function. As a public demonstration of clemency and the power of redemption, it contributes symbolically to the health of the republic. But when used improperly, the pardon becomes a poison to the body politic, rather than an antidote to what is ailing it.
This is certainly the case when it comes to President Donald Trump’s decision to pardon Michael Behenna, a U.S. special operations forces officer convicted by a court martial of murdering a detainee in Iraq in 2008. Trump is also reportedly considering pardons for several other U.S. officers accused of war crimes in Iraq and Afghanistan, but who have not yet stood trial.
Much of the criticism of the pardons, which are apparently being planned to coincide with Memorial Day, has come from veterans like retired Lt. Gen. Mark Hertling and Andrew Exum, who argue that military discipline and cohesion depend on respect for lawful orders. In practical terms, the responsibility for enforcing that discipline falls to the commissioned and noncommissioned officers commanding troops on the ground. But in symbolic terms, it begins and ends with the commander-in-chief. In this case, by removing any consequences for the wanton disregard not only of official orders, but also international law governing warfare, Trump is undermining the chain of command.