With Liberty and Injustice for All? The Limits of the Presidential Pardon Power

On December 22nd, one day before departing for Mar-a-Lago for his planned Christmas getaway, President Trump ensured Press Secretary Kayleigh McEnany revealed his intentions to pardon four men tried and convicted for crimes that occurred during their tenure as employees of a private defense company formerly known as Blackwater USA. The document entitled “Statement from the Press Secretary Regarding Executive Grants of Clemency” immediately grabbed headlines as it granted full pardons to the following individuals: Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard. Upon its release, the statement and pardons stirred much controversy over the actions for which the men were being excused despite the document stating that “[t]he pardon of these four veterans is broadly supported by the public…”. In addition to the President, nine Republican members of the U.S. House of Representatives are listed as supporting the pardons of these defense contractors.

Blackwater USA was founded by Erik Prince, a former Navy SEAL and brother of current Secretary of Education Betsy DeVos. His private defense firm came under global scrutiny in 2007 when some of its employees opened fire in Nisour Square in Baghdad, Iraq. Though the exact details of the attack are heavily disputed, the information that was made available revealed Blackwater employees set up an unauthorized motor blockade in what is a typically populous square. With no discernible cause, the employees opened fire, killing 14 unarmed Iraqi civilians, including a 9-year-old and 11-year-old. According to the Department of Justice reports from the sentencing, the followings convictions were reached after jury trials for the men:

“Nicholas Slatten commit[ed] first-degree murder in the killing of Ahmed Haithem Ahmed Al Rubia’y; Slough [was found] guilty of 13 counts of voluntary manslaughter, 17 counts of attempted manslaughter, and one firearms offense. Liberty was found guilty of eight counts of voluntary manslaughter, 12 counts of attempted manslaughter, and one firearms offense. Heard was found guilty of six counts of voluntary manslaughter, 11 counts of attempted manslaughter, and one firearms offense”.

The authority for the President to pardon (excuse) federal crimes or commute (shorten) sentences being served as a result of federal crimes comes from Article II Section 2 of the Constitution which states, “The President. . .shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. Historically, pardons and commutations are very common. According to the Pew Research Center, every president since 1897 has used this power in varying degrees. Pardoning power grants the president other abilities such as offering respites (a delay in the start of a sentence) and remissions (liberation from paying a forfeiture, penalty, or restitution order) but typically, outgoing administrations will focus on pardons and commutations.

Despite pardoning power being a Constitutionally delegated right, President Trump’s excusal of the four private defense contractors has put him in the international hot seat. The United Nations Human Rights Office issued a blistering statement describing their reaction as “deeply concerned” about the pardons and on behalf of those who died in the attack, emphasized that “[v]ictims of gross human rights violations and serious violations of international humanitarian law also have the right to a remedy. This includes the right to see perpetrators serve punishments proportionate to the seriousness of their conduct”.

In stark contrast, the White House focused on highlighting the defense contractors’ past service and downplaying the extremity of the crimes, stating simply that “the situation turned violent”. Questionably, the White House failed to mention the number of individuals left dead as a result of the four men’s actions and underscored possible problems with the trial procedures that led to their convictions. Specifically, the release highlighted Slatten as a member of the prestigious and famed 82nd Airborne Division; Slough as a combat veteran in Iraq; and Liberty and Heard as former Marines, and it attempted to tie an Iraqi investigator to insurgent groups while also stressing the contentious procedural history of the cases.

It remains to be seen if the president will maximize his power to pardon during his remaining time in office. There is major speculation about a possible pardon for Rudy Giuliani, President Trump’s political ally and personal lawyer, who is currently being investigated by the Justice Department. In addition to the Blackwater pardons, President Trump has also raised eyebrows by pardoning political allies such as Roger Stone, who was convicted of obstruction of justice, false statements and witness tampering, and Paul J. Manafort, who was convicted of primarily tax and bank fraud offenses. Historical records on presidential pardons and commutations dating back to the Nixon Administration may be found at https://www.justice.gov/pardon/clemencyrecipients. 

Christopher Becker
Contributor at The Commoner | Website | + posts

Christopher Becker is a civil litigator practicing in Suffolk County, New York at TonaLaw. Christopher graduated from the University of Alabama’s School of Law in 2016. There, he was a Senior Editor of the Civil Rights and Civil Liberties Law Review.

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