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As someone who writes about clemency, I wanted to share a few thoughts on how extraordinary it would be for the president to give a pardon to Navy SEAL Edward Gallagher before he was tried or convicted of his offense. /1
Although the president has the power to give a pardon before a conviction or trial, it is rare event. President Ford's pardon of President Nixon is the most famous example, where Ford did it for the "tranquility of the Nation." /2
Other examples of pre-trial/conviction pardons involve similar public policy reasons, as when Ford pardoned individuals facing prosecution for the Vietnam draft. The idea behind them was that the country would be better off if the matter could be put to rest. /3
There is no such justification that I can see for doing that in this case, and if anything, the opposite is true. Although Gallagher's defenders claim he is not guilty as charged, without a trial, we cannot know the facts. And the pardon will eliminate the trial. /4
Moreover, as the Supreme Court has said, a pardon "carries an imputation of guilt; acceptance a confession of it." The idea is that, although the person committed the crime, he/she deserves mercy , usually because the person has shown contrition and rehabilitation. /5
Clemency is a critical safety valve in our system to recognize excessive sentences, rehabilitation, and changed circumstances. Pardons give people needed clean slates. But it makes a mockery of this valuable tool of justice to use it in a case like this. /6
The key is focus no what makes this instance of clemency awful and not reject the entire premise for having it. We need to have second looks in our system because people and circumstances change, and in the federal system w/o parole, presidential clemency is the only option. /7
That process could use improvement. @Oslerguy and I have argued it should be taken out of the Dept of Justice b/c prosecutors are not objective evaluators of their past decisions. (scholarship.law.wm.edu/cgi/viewconten…) /8
No state puts prosecutors in charge of clemency like the federal system does because it defies reason and common sense to ask the people who brought the cases in the first place to objectively weigh them again at clemency. /9
It is largely historical accident that clemency ended up in DOJ. We could and should have a more independent body advise the president. But although federal clemency could be improved, we should not jettison the core idea of why clemency is needed in the first place. /10
There are thousands of cases of injustice crying out for commutations, and people who have proven they deserve a pardon because of how they've lived their lives post-conviction. Those are the people who deserve the president's attention. /11
It would be an insult to the many people who deserve clemency, not to mention our brave and honorable soldiers who fight within the bounds of the rules of war, to use the awesome pardon power in a case like this, before the truth has even seen the light of day in a trial. /end
