Published On: Wed, Jan 6th, 2021

Donald Trump’s Pardoning Power and the Law of Nations

Prof. Louis Rene Beres

“States shall not take….any measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity.” – Principles of International Cooperation, General Assembly Resolution, 1973

“It’s not surprising that a criminal like Trump pardons other criminals, but apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey.” – Senior US Federal Judge Robert Pain, Southern District of Iowa, 28 December 2020

Considerations of law and justice have never meant much to US President Donald J. Trump. More precisely, legal derelictions – even when grievous and overt – have generally been expected by this president’s friends and foes alike. Now, in rancorous departure from American public life, Mr. Trump has unleashed a barrage of presidential pardons, all conspicuously motivated by presumptions of self-interest.

Though regrettable in law, Trump is apt to get away with most or even all of these particular manipulations and harms. In part, at least, this expected impunity owes to broadly interpreted protections of the Constitution’s pardoning power. Still, there do exist certain authoritative examples of countermanding jurisprudence. One such acknowledged exception to pertinent protections has had to do with the invalidity of presidential pardons for crimes committed against US states or municipalities.

A prominent case continues to center on possible investigations (federal) conducted by the Southern District of New York.

There are, moreover, additional law-based pardoning limitations. While typically unknown to both laypersons and jurists, various relevant issues of international law should also be taken into account. Significantly, this global law, traditionally called the Law of Nations, shares its Natural Law origins with US law.

Ipso facto, the Law of Nations is part of the law of the United States.

There is more. Despite obvious and substantial interpenetrations of US law, natural law and international law, the United States Constitution is unambiguous on this crucial separation: A president’s power to pardon does not extend to violations of international law. This power is limited to “Offenses against the United States.” These offenses, moreover, are not subject to any idiosyncratic, whimsical or loosely ad hoc definition. Rather, they are limited to “…only those offenses declared to be such by the solemn action of the legislative body.”

The Law of Nations, or international law, is federal common law. Inter alia, the constitutionality of federal subject matter jurisdiction on such important matters is established at Articles III and VI of the Constitution, and also in actions involving US treaty violations. In essence, per Judge Edwards in Tel-Oren, actions involving violations of international law arise under US law because the Law of Nations “is an integral part of the laws of this country.”

Have any of Donald J. Trump’s late 2020 pardons concerned violations of international law? If “yes,” these presidential grants of immunity were ipso facto unlawful. To be sure, an affirmative response is plainly unassailable. Just a few obvious and flagrant examples of Trump’s illegally-granted pardons are identified as follows:

  • Michael Flynn, criminal contacts with a foreign (Russian) ambassador
  • Paul Manafort, financial fraud with a foreign (Russia) government
  • Mark Siljander, criminal work as a foreign agent for an Islamic charity seeking removal of its name from the official US list of pro-terrorist organizations
  • Nicholas Slatten, Blackwater contractor sentenced for first degree murder in the 2007 massacre of Iraqi civilians including children
  • Paul Slough, also a member of the “Blackwater Four,” sentenced for the unprovoked massacre of Iraqi civilians
  • Evan Liberty, for slaughter of Iraqi civilians in Baghdad
  • Michael Behenna, former US Army lieutenant, for 2008 murder of an Iraqi civilian during the US occupation
  • Clint Lorance, former US Army lieutenant, convicted in 2013 of war crimes; Lorance ordered his men to open fire on unarmed civilians in Afghanistan. Even former Trump-appointed Secretary of Defense Mark Esper had objected openly to this pardon.

In all the above cases that involve crimes of war, a competent legal scholar could argue more or less persuasively that pertinent Trump pardons were not solely violations of international law. Such an argument would be based on a well-established understanding that the laws of war – aka humanitarian international law – have already been “incorporated” into the laws of the United States. Nonetheless, such a selective argument would overlook that the Trump pardons, prima facie, (1) represent an abuse of a president’s Constitutional obligation to “faithfully execute the law;” and (2) patently ignore the always-complementary US position that every pardon is “an act of grace, proceeding directly from the power entrusted with the execution of the laws….”

These expressions of impermissible action are not complicated or hard to fathom. US President Donald J. Trump’s pardons were anything but “an act of grace.” In legal-philosophical terms, they were cynical re-affirmations of the Sophist view of justice as revealed in Plato’s Republic. Here, says Thrasymachus famously (infamously), “Right is the interest of the stronger.”

At this point, the core legal problem is one of meaningfully challenging, reversing or somehow remediating Donald Trump’s abuses of the US Constitution’s pardoning power. Are there ways in which pertinent remedial actions could be correctly and pragmatically undertaken? Valid answers are within reach of disciplined legal reasoning, and may best be approached dialectically.

The United States is not a party to the International Criminal Court. In principle, perhaps, a prospective plaintiff with an appropriate judicial interest in these matters could bring justifiable claims into US federal court by way of the Alien Tort Statute (1789). Examples might be foreign nationals and identifiable relatives of victims injured or killed by one or several of the above-listed American beneficiaries of presidential pardon (e.g., the “Blackwater Four”). But even if civil law remedies were allowed in such a markedly complex claim, this judicial strategy would not necessarily revoke or remediate any of the (now-antecedent) Trump pardons.

Today, in 2021, there can be no reasonable question about an individual’s responsibility for violations of international law. Nonetheless, the de facto result of US President Donald J. Trump’s pardoning of certain individual US citizen actions overseas was to retroactively eliminate such established criminal responsibility. In effect, the president’s pardon was illegal on two separate but interrelated grounds: (1) the general invalidity of pardons for violations of the Law of Nations and (2) the specific exoneration of a particular international crime.

What is to be done now? The underlying question is how to revoke or remediate a series of unlawful US presidential pardons. For a variety of reasons – not the least being a statutory reliance upon foreign nationals in order to support US law – looking to the eighteenth-century Alien Tort Statute for guidance would be both unsavory and unsatisfactory. Among other things, Alien Tort was enacted in 1789 for very different reasons and has never been leveraged for the urgent purpose currently at hand.

Under authoritative international law, the criminal responsibility of individuals cannot be removed by the unilateral actions of any national government. This is because a person is always liable for punishment by international law independently of any provisions of internal law. Technically, this fundamental principle references the unchallengeable “supremacy” of international law over national law. At Nuremberg, the Tribunal included the following statement in its binding final judgment: “…the very essence of the Charter (London Charter of August 8, 1945) is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.”

Reciprocally, states have a peremptory obligation to avoid any “denials of justice” in the sense intended by international law. Among other things, this obligation is based on plausibly reasonable concerns that by pardoning a criminal, the state “assumes responsibility for his past acts.” In the particular case of multiple Trump pardons, especially those involving war crimes, this means reputational consequences that must include more-or-less substantial legal diminutions of the United States.

In the end, the only potentially realistic source for any law-based remediation of expressly impermissible Trump pardons – i.e., those involving the Law of Nations – would have to involve incoming US President Joe Biden and his Department of Justice. Though at least conceivable in principle, any presumed imperative to take this technically-complicated route is likely to be outweighed by Joe Biden’s legitimate hopes for achieving national and international reconciliation. To be sure, the prospective primacy of such hopes ought not to be minimized or ridiculed in any way, but elevating them prima facie above absolutely all other competing expectations would likely ensure a deeply injurious legacy of American injustice.

At that point, we would all have to agree with the poet William Butler Yeats, “There is no longer a virtuous nation, and the best of us live by candlelight.”

Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.

His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear

This article was first published in Jurist

Photo Credit: November 24, 2020, President Donald Trump honored the tradition of officially pardoning the National Thanksgiving Turkey! – photo White House

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