Ex-soldier's acceptance of Trump pardon didn't constitute confession of guilt, court rules

3 minute read

REUTERS/Finbarr O'Reilly

Register now for FREE unlimited access to Reuters.com
  • 10th Circuit holds that Clint Lorance's pardon did not constitute confession of guilt
  • Lorance had been convicted of murdering two Afghan civilians

(Reuters) - A federal appeals court on Thursday said a former U.S. Army officer's acceptance of a pardon from former Republican President Donald Trump did not constitute a confession of guilt that would bar him from challenging his convictions for murdering two Afghan civilians.

The 10th U.S. Circuit Court of Appeals' ruling in favor of former First Lieutenant Clint Lorance appeared to mark the first time a federal appeals court has ever decided whether accepting a presidential pardon amounts to a legal confession of guilt.

A lower-court judge in Kansas had concluded the 2019 pardon did constitute a confession, citing the 1915 U.S. Supreme Court ruling in Burdick v. United States that stated "a pardon carries an imputation of guilt; acceptance a confession of it."

Register now for FREE unlimited access to Reuters.com

But Senior U.S. Circuit Judge David Ebel declined to adopt that "draconian" reading of Burdick, saying the statement was an aside, or dicta, in the court's overall holding on the legal effect of someone's unaccepted pardon.

Ebel said no court since had ever held that accepting a pardon was akin to confessing guilt and that the ruling instead simply meant that accepting one "only makes the pardonee look guilty by implying or imputing that he needs the pardon."

"If the Court had meant to impute other, legal consequences to the acceptance of a presidential pardon, it surely would have said so explicitly," Ebel wrote.

And while Trump could have conditioned a pardon upon an admission of guilt, "the pardon was instead merely agnostic as to Lorance's guilt, not purporting to speak to guilt or innocence," Ebel said.

U.S. Circuit Judges Robert Bacharach and Gregory Phillips, both appointees of former Democratic President Barack Obama, joined the decision by Ebel, an appointee of former Republican President Ronald Reagan.

John Maher, a lawyer for Lorance at Maher Legal Services, did not respond to a request for comment. A spokesperson for Acting Kansas U.S. Attorney Duston Slinkard, whose office handled the appeal, said it was reviewing the ruling.

In 2013, a military jury in Fort Bragg, North Carolina, found Lorance guilty of murder and other charges stemming from having ordered his platoon in Afghanistan to fire upon three Afghans, killing two of them.

Lorance had pleaded not guilty, and his lawyers had argued he had given a legitimate order to soldiers in his platoon to open fire on the approaching motorcycles, suspecting they were Taliban suicide bombers.

Lorance was sentenced to 19 years in prison. After losing multiple appeals, Lorance in 2019 filed a habeas petition in federal court in Kansas challenging his court-martial convictions.

Three days after he filed that case, Trump pardoned Lorance, who had become a cause célèbre among some conservatives including Fox News talk show host Sean Hannity. The Justice Department then moved to dismiss the case, saying it was moot.

Lorance sought to continue to press the case, citing collateral consequences of his conviction, including that the pardon did not restore his back pay, rank, or Veterans Administration benefits.

But U.S. District Judge John Lungstrum agreed the case was moot, saying that under U.S. Supreme Court precedent, Lorance's acceptance of the pardon constituted a confession of guilt and thus a waiver of his rights to pursue the case.

The case is Lorance v. Commandant, 10th U.S. Circuit Court of Appeals, No. 20-3055.

For Clint Lorance: John Maher of Maher Legal Services

For the United States: Jared Maag of the U.S. Attorney's Office for the District of Kansas

Register now for FREE unlimited access to Reuters.com

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.