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Question

  1. Can a future president fully pardon any military commanders convicted of or charged with insubordination or any similar crime for refusing to follow orders of a current POTUS to take military or nuclear action that they deem as extreme or illegal?

    • Correlated Sub-question: And is there anything illegal or that'd disallow a certified president-elect from making a public statement before their inauguration that they would consider fully pardoning any military commander charged with or convicted of such correlated crimes?

Why

  1. Wasn't sure if the presidential power of pardon has any limits such as being prohibited from being used to pardon a military official or commander that's charged or convicted while actively serving, etc.

  2. As per the the post "Quickly prevent POTUS from initiating military or nuclear operations?" and the answers received there, it seems the only "quick" solution for that concern is for military commanders to weigh the risks of disobeying the current Commander in Chief which they could be charged with a crime and decide to take such action of not.

  3. As per the post "If the VP resigns, can the 25th Amendment still be invoked?" and answers received there, the only other way to prevent the POTUS from taking military or nuclear action would be to invoke the 25th Amendment. However, this is unlikely to happen since it requires both Pence and either the majority of Trump's cabinet or majority of Congress with Pence being the main driving factor in invoking it.

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  • 2
    Let me know what I can do or how I can reword to make this question better and more correct if something is wrong with it, please.
    – The 'Bernie Sanders' Party
    Jan 9, 2021 at 23:58
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    I do not understand why this is downvoted. It is a reasonable and well posed question IMO.
    – StephenG - Help Ukraine
    Jan 10, 2021 at 4:56
  • Both good answers, I accepted James' since it was more direct to the specific of the question and first to be answered. But the other answer is good too but I can only accept one so that's what I picked for now I suppose. If someone posts something better, I'm always willing to consider it too since I can always accept another answer. I'm satisficed at the moment as-is though.
    – The 'Bernie Sanders' Party
    Jan 11, 2021 at 16:30

3 Answers 3

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Yes.

The president can pardon crimes that are tried by court-martial. This is quite routine many people from Manning to Behanna have been pardoned following court-martial. The US military code is a federal code of criminal laws and the President can pardon crimes against the USA. Article II section 1 is unambiguous on that.

A "future President" can't issue pardons... until they become the "present President". President-Elect Biden can't pardon, but President Biden will be able to.

Saying "I will pardon you" could be seen as inciting a crime. (A pardoned crime is still a crime) So for Biden to promise a pardon is very questionable, it could lead at least to impeachment actions (if the House is won by Republicans in 2022). But I don't think this has ever come to trial.

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  • A President can also commute (i.e. reduce or eliminate) the remainder sentence entered by a court-martial, although if the sentence has been served in full (e.g. a death penalty sentence that has been carried out) that isn't possible, of course.
    – ohwilleke ♦
    Jan 18, 2022 at 0:27
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The President may not pardon in matters of impeachment (Article II, Section 2, Clause 1), but that probably wouldn't apply to the case of most military commanders.

There is also one punishment which the President has no authority to pardon: the inability to hold a public office for those who participate in a rebellion or insurrection. In this case, only two-thirds of both houses of Congress has the power to remove this punishment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

14th Amendment to the U.S. Constitution, Section 3

This section was enacted to punish members of Congress and the U.S. military who supported the Confederacy during the Civil War. It is still codified in U.S. law as 18 U.S. Code § 2383.

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A “future” President (aka President-elect or candidate) can not pardon anyone, promising a pardon for future criminal action would be a criminal conspiracy. For a candidate and if known, that would almost certain be an end to their candidacy. More complex for a President-elect. Promising a pardon AFTER the crime by either might be a crime or might not depending on exact circumstances, and again more complex for President-elect.

A President (not ex or elect) can pardon whoever they want to, although only for federal crimes.

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