Dem Senators: We'd like more information on the military Pardons Trump is absolutely allowed to issue

Amazingly, the Democrats on the Senate Judiciary Committee have found something to talk about that doesn’t have to do with impeachment, at least yet, anyway. Patrick Leahy and Sheldon Whitehouse would like a word about those pardons, and they’re not talking about the turkeys that were let off the hook yesterday. The pardons issued for three Navy SEALs are on their minds, and the Senators would like to investigate just how they came about. (The Hill)

Sens. Patrick Leahy (D-Vt.) and Sheldon Whitehouse (D-R.I.), two members of the Senate Judiciary Committee, are pressing the Department of Justice to answer questions about President Trump’s pardons of U.S. soldiers accused of war crimes.

The Democratic senators want to know whether the Justice Department’s Office of the Pardon Attorney was involved in the decisions to pardon soldiers accused of unlawful military executions, including fatal shootings of unarmed civilians.

They also asked whether the Justice Department issued any advice or recommendations to the White House and whether it coordinated at all with the Department of Defense, where senior officials were initially opposed to the pardons.

Let’s look at the details being sought by Leahy and Whitehouse. First, they want to know if the President consulted the Office of the Pardon Attorney before issuing the pardons. For those not familiar, the Office of the Pardon Attorney in the DOJ “assists the President in the exercise of executive clemency.” They review pardon requests and provide recommendations to the President. That’s all. They don’t have any authority to force the approval of a pardon request or deny one. The President isn’t legally required to obtain their approval.

The Senators would also like to know whether “the Justice Department issued any advice or recommendations.” Given that the Office of the Pardon Attorney is part of the Justice Department, don’t you suppose they would have handled that? But, again, the President isn’t required to consult with the DoJ.

Leahy and Whitehouse are also asking if Trump coordinated at all with the Department of Defense. Obviously. Several senior people at the DoD weighed in and they all thought the pardons were a bad idea. Trump ignored them. He is also not required to “coordinate” with anyone at Defense when making decisions about pardons, though in the case of the military, it would certainly have been a good idea.

There, Senators. I’ve saved you the fuss and muss of an entire investigation in three short paragraphs.

The crazy (or crazier) part of all this is that these two Senators clearly know that this investigation is a dead end before it begins. In their letter, they reference the Office of the Pardon Attorney and write, “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.”

They could have stopped with the first sentence and eliminated the word “virtually.” (Well… there are some questions as to whether or not the President can pardon himself, but aside from that, the power is absolute when it comes to anyone charged with a federal crime.) The Office of the Pardon Attorney is not a “safeguard” in any sense of the word. They have no power to stop a pardon or force the President to issue one. Theirs is an advisory role.

As I’ve written from the beginning of this saga, I believe these pardons and other interventions involving the three SEALs were a bad idea. It undermines the chain of command and sets a bad example for all of our warfighters. But the fact is if I wanted to be the person making decisions about military pardons I should have run for President. Such decisions are Trump’s alone to make for as long as he’s in office and history will be his judge in such matters.