In the final months of his administration, President Donald Trump issued a variety of pardons and commutations, including a number related to foreign relations. His decision to issue full pardons to four former Blackwater contractors, who were convicted of killing Iraqi civilians in the 2007 Nisour Square incident, drew particular condemnation and continued a pattern of clemency grants related to war crimes committed abroad. Trump also granted clemency to his former national security advisor, Michael Flynn, and other associates who were convicted as a result of Special Counsel Robert S. Mueller III's investigation into Russian interference in the 2016 presidential election. Additionally, Trump pardoned the Israeli handler of Jonathan Pollard, a convicted U.S. spy.
Article II, Section 2 of the U.S. Constitution gives the president “power to grant reprieves and pardons for Offenses against the United States, except in cases of impeachment.”Footnote 1 This authority has been interpreted broadly to include offenses committed in foreign countries against non-U.S. citizens, if prosecuted by the United States.Footnote 2 With limited exceptions, U.S. presidents have not interjected themselves into cases involving military personnel whose underlying offenses constitute war crimes.Footnote 3 President Trump departed from this pattern in 2019, granting full pardons to First Lieutenant Michael Behenna, who had been convicted of murdering an Iraqi detainee; Lieutenant Clint Lorance, who had been convicted of murdering Afghani villagers; and Major Mathew Golsteyn, who was still pending court-martial for the murder of a suspected Afghan bomb-maker.Footnote 4 He also granted clemency to Chief Petty Officer Edward Gallagher, who had been convicted of taking a “trophy photo” with the body of an ISIS fighter.Footnote 5
In the final two months of his administration, Trump granted a wave of clemency requests.Footnote 6 While presidents often issue pardons and commutations at the end of their term,Footnote 7 the recipients of Trump's clemency grants and the atypical process that he used to vet cases were controversial. The U.S. Department of Justice's pardon attorney is generally tasked with “receiv[ing] and review[ing] all petitions for Executive Clemency . . . , initiat[ing] and direct[ing] the necessary investigations, and prepar[ing] a report and recommendation for submission to the President in every case.”Footnote 8 Though this formal pardon attorney process is not constitutionally required, it is intended to “regularize . . . pardon considerations” through the application of established criteria and to protect the president from issuing questionable pardons.Footnote 9 Just twenty-five of the roughly 240 pardons and commutations that Trump granted went through the pardon attorney; the rest reached him “ad hoc” through advisors in the White House.Footnote 10
Trump's December 2020 decision to grant full pardons to four former Blackwater contractors—Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin HeardFootnote 11—drew particular attention. Slatten was convicted of first-degree murder and the other three men were convicted of manslaughter for their roles in the 2007 Nisour Square incident, which left thirty-one Iraqi civilians dead or wounded.Footnote 12 At the time of the incident, the contractors were tasked with providing security to U.S. diplomats serving in Iraq, and they claimed they acted in self-defense after their convoy came under fire during a stop.Footnote 13 However, “[i]nvestigators for the military and the [Federal Bureau of Investigation (FBI)] later described the shootings, in which the contractors unleashed a blaze of gunfire and grenade explosions in a busy Baghdad square, as unprovoked and unjustified,”Footnote 14 and “the men were charged in 14 of the deaths that the F.B.I. found violated rules for deadly use of force.”Footnote 15 The United States would not allow the contractors to be tried in Iraqi courts,Footnote 16 but U.S. proceedings took more than a decade.Footnote 17 Then-Vice President Joseph Biden's announcement in 2010 that the Obama administration would appeal an early trial court decision to dismiss the charges caused certain media outlets to refer to the contractors as the “Biden Four.”Footnote 18 Ultimately, in 2019, the U.S. District Court for the District of Columbia sentenced Slatten to life imprisonmentFootnote 19 and resentenced the other three contractors to twelve- to fifteen-year terms of imprisonment.Footnote 20 Overall, the incident sparked increased scrutiny over the proper role of private security contractors operating in combat zones and caused friction between the United States and Iraq, eventually “play[ing] a role in helping to speed the withdrawal of U.S. forces from Iraq in 2011, after Iraqi political leaders rejected American demands for immunity for all U.S. troops.”Footnote 21
In a statement announcing the pardons, the White House press secretary emphasized the contractors’ prior military service and characterized the Nisour Square incident and subsequent case as follows:
These veterans were working in Iraq in 2007 as security contractors responsible for securing the safety of United States personnel. When the convoy attempted to establish a blockade outside the “Green Zone,” the situation turned violent, which resulted in the unfortunate deaths and injuries of Iraqi civilians. Initial charges against the men were dismissed, but they were eventually tried and convicted on charges ranging from first degree murder to voluntary manslaughter. On appeal, the D.C. Circuit Court of Appeals ruled that additional evidence should have been presented at Mr. Slatten's trial. Further, prosecutors recently disclosed—more than 10 years after the incident—that the lead Iraqi investigator, who prosecutors relied heavily on to verify that there were no insurgent victims and to collect evidence, may have had ties to insurgent groups himself.Footnote 22
The statement further indicated that the pardons were “broadly supported by the public” and nine Republican members of the House of Representatives.Footnote 23 Support Raven 23, a private advocacy group that had long lobbied for the pardons, characterized the contractors as “four decorated veterans” who “were sacrificed for politics and convicted by lies.”Footnote 24
The Blackwater pardons brought swift condemnation from a variety of quarters. The Iraqi Foreign Ministry observed that the pardons are “inconsistent with the [U.S.] administration's declared commitment to the values of human rights, justice and the rule of law.”Footnote 25 Senator Chris Murphy (D-CT) tweeted that “[p]ardoning these murderers is a disgrace,” calling it “part of a plan to limit Biden's national security tools” by “greatly damag[ing] U.S.-Iraq relations, at a critical moment.”Footnote 26 Former U.S. Attorney for the District of Columbia Ronald C. Machen, who oversaw the contractors’ prosecution, noted the difficulties the Department of Justice had faced investigating the case in a hot combat zone and prosecuting it with more than thirty hesitant, foreign witnesses, and he lamented that the pardons had “‘thrown away’” those efforts.Footnote 27 Haider Ahmed, who was shot four times during the Nisour Square incident, explained that he testified at the contractors’ trial because he “‘thought there [wa]s a real law’” in the United States, but the pardons have caused him to ask “‘[w]hy did I bother?’”Footnote 28
Human rights groups and experts also condemned the pardons. Human Rights Watch observed that “‘justice ha[d] been undone by the stroke of a pen.’”Footnote 29 Independent human rights experts sitting on the UN Human Rights Council's Working Group on the Use of Mercenaries commented that “‘[t]hese pardons violate [U.S.] obligations under international law and more broadly undermine humanitarian law and human rights at a global level.’”Footnote 30
In addition to the Blackwater pardons, Trump granted clemency to a number of associates convicted as part of Special Counsel Mueller's investigation into Russian interference in the 2016 presidential election.Footnote 31 On November 25, 2020, Trump granted Flynn a full pardon for lying to the FBI.Footnote 32 The White House press secretary's statement announcing the pardon criticized the investigation, declaring:
General Flynn should not require a pardon. He is an innocent man. Even the FBI agents who interviewed General Flynn did not think he was lying. Multiple investigations have produced evidence establishing that General Flynn was the victim of partisan government officials engaged in a coordinated attempt to subvert the election of 2016. These individuals sought to prevent Donald Trump from being elected to the Presidency, to block him from assuming that office upon his election, to remove him from office after his inauguration, and to undermine his Administration at every turn.Footnote 33
On December 22, 2020, Trump pardoned his former foreign policy advisor George Papadopoulos and attorney Alexander van der Zwann, who had both pleaded guilty to making false statements to investigators.Footnote 34 The next day, Trump issued pardons to his former advisor Roger Stone, Jr., who had been convicted of obstruction of proceedings, witness tampering, and five counts of false statements,Footnote 35 and to his former campaign chairman Paul Manafort, who had pleaded “guilty to conspiracy to defraud the United States and obstruct justice related to his undisclosed lobbying for a pro-Russian politician and political party in Ukraine.”Footnote 36 Trump also granted a full pardon to Paul Erickson, who is the former boyfriend of Russian agent Maria Butina and was convicted of a financial crime as a result of the Mueller investigation.Footnote 37
Additionally, on his last day in office, Trump pardoned Aviem Sella, an Israeli citizen who recruited former U.S. Navy intelligence analyst Jonathan Pollard to spy for Israel in the 1980s.Footnote 38 The White House noted that “the Prime Minister of Israel Benjamin Netanyahu, Israeli Ambassador to the United States Ron Dermer, the United States Ambassador to Israel David Friedman, and Miriam Adelson” supported the request and that Israel “has issued a full and unequivocal apology [for its involvement], and has requested the pardon in order to close this unfortunate chapter in U.S.-Israel relations.”Footnote 39
Also notable are pardons Trump ultimately did not issue. In particular, Trump chose not to pardon WikiLeaks founder Julian Assange, whose extradition to the United States on espionage charges a British judge recently blocked.Footnote 40 Trump also did not pardon himself, his adult children, his son-in-law Jared Kushner, his personal attorney Rudolph W. Giuliani, or participants in the January 6, 2021 riot at the U.S. Capitol building.Footnote 41
