'Insurgents' lobbied Trump for war crimes pardons with little Pentagon involvement, officials say
By DAN LAMOTHE AND JOSH DAWSEY | The Washington Post | Published: November 21, 2019
President Donald Trump took to the phone in the Oval Office last week after days of speculation. In succession, he notified three U.S. service members accused of war crimes that he was intervening on their behalf and issuing full pardons in two of the cases as Vice President Mike Pence, top political officials and lawyers listened on speakerphone.
Army Maj. Mathew Golsteyn, who faced a murder trial next year in the 2010 death of a suspected Taliban bombmaker, said he expected the call to be quick. But Trump talked to him for nearly 15 minutes, asking questions about his plans for the future and the Pentagon's application of military justice.
"I'm paraphrasing here, but he asked, 'Did you feel like you were going to get a fair shake or that it was slanted or biased against you?' " Golsteyn said in an interview. "I told him, 'Sir, it was quite clear that the outcome was fixed.' And he said, 'Yeah, that was my thoughts, as well.' "
Trump's intervention in the cases prompted a sharp backlash from some veterans and legal experts, who said that it will undermine the military justice system and weaken U.S. credibility abroad. But on Thursday, Trump weighed in again, saying in a tweet that he will not allow one of the service members to be ejected from the Navy SEALs.
"The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher's Trident Pin," the president wrote. "This case was handled very badly from the beginning. Get back to business!"
How Trump came to believe that the Pentagon could not handle the cases fairly, and ultimately issue the pardons, reflects his tendency to accept the advice of people outside his administration. The president mostly left defense officials out of his discussions about the issue until a few weeks ago and told his top advisers that his supporters would back the move, according to five officials familiar with the situation.
Instead, the officials said, Trump discussed the issue with other people in his orbit, including Pete Hegseth, a Fox News personality who highlighted the cases on his show and described the service members as heroes facing malicious prosecution. Trump called Hegseth numerous times to discuss the issue and told others about the conversations, according to one current and one former administration official.
This account of how Trump reached his decision — and what comes next — is based on interviews with more than a dozen people familiar with the cases, including White House and Pentagon officials. Many of them spoke on the condition of anonymity because of the sensitivity of the issue and a desire to avoid the president's ire.
In addition to Golsteyn, Trump pardoned former Army 1st Lt. Clint Lorance, who was convicted in 2013 of two counts of second-degree murder after ordering his soldiers to open fire on unarmed men in Afghanistan. Trump also reinstated the rank of Gallagher, a Navy SEAL who was acquitted of murder in July but convicted of posing for a photo with the remains of an Islamic State fighter.
Early this month, Defense Secretary Mark Esper and Army Secretary Ryan McCarthy — both Army veterans — went to the White House to persuade the president not to move forward with his plan. The visit came one day after Hegseth, who did not respond to The Washington Post's requests for comment, announced on his show that he expected Trump to intervene in the cases.
For over an hour, the senior defense officials described what they believe to be the facts of the case, said officials familiar with the meeting. They carried documents and graphics with them and pointed out that Golsteyn was accused of burying the man he had killed, digging up his remains and then moving them. Lorance had been convicted in the deaths of unarmed men, they added.
Senior defense officials, who learned about Trump's plan shortly before Hegseth's announcement, were convinced that Trump was being fed bad information. Two officials said one document that reached the Oval Office stated that the Afghans killed in Lorance's case were "gunning" their motorcycle at the soldiers — a point often repeated by conservative pundits. Other soldiers testified at Lorance's trial that the men killed were a couple hundred yards away and not on a motorcycle when the Americans opened fire.
During the meeting, Trump shared the points Hegseth was making, according to one current and one former administration official. The defense officials tried to correct what they saw as misinformation, the officials said.
Esper later described the conversation with Trump as "robust."
Trump told other advisers at the White House that, before the meeting, he already had made his decision to issue pardons. Esper sought to delay an announcement, the officials said. Army Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, argued that the pardons would damage U.S. relationships around the world, and other advisers said it would set a bad precedent.
"They were trying to convince the president these guys were actually criminals, not heroes," one of the officials said.
Trump said the system was stacked against the men and it would send a bad message if "we throw people in jail for going to war for us," the officials said.
Trump first signaled publicly that he might wade into war crimes cases last December, after Golsteyn's wife, Julie, appeared on Hegseth's program.
"At the request of many, I will be reviewing the case of a 'U.S. Military hero,' Major Matt Golsteyn, who is charged with murder," Trump tweeted afterward. "He could face the death penalty from our own government after he admitted to killing a Terrorist bomb maker while overseas."
The president's tweet — a surprise to advocates for the service members — altered possibilities, said people familiar with the cases.
While Hegseth began discussing the cases with the president, United American Patriots, a nonprofit that advocates for service members charged with war crimes, also sent files to the White House, said David Gurfein, the group's chief executive. Gurfein said in an interview that UAP provided the information this spring after a congressman — he declined to say who — met with Trump.
Several officials said that Trump began making comparisons to the cases of Bowe Bergdahl, a soldier who triggered a massive manhunt in Afghanistan after he deserted his post in 2009 and was captured by militants, and Chelsea Manning, a soldier who leaked a trove of classified information. President Barack Obama traded five Taliban officials for Bergdahl and invited his parents to the Rose Garden before he was court-martialed. Obama shortened Manning's prison sentence from 35 years to seven in 2017.
"Our great warfighters must be allowed to fight," Trump said in a tweet Sunday. "I would not have done this for Sgt. Bergdahl or Chelsea Manning!"
One U.S. official familiar with the discussions said he believes Trump's mind effectively was made up about Golsteyn after seeing the initial interview with his wife in December. A "cohort" of "insurgents" advocated for the service members for years, one official involved in the campaign said proudly, but the effort gained major traction after Trump took an interest.
"I think from the moment that Julie Golsteyn made her first media appearance, the president had already made up his mind about what he wanted to do," the official said. "But he also was presenting an opportunity to be convinced otherwise."
In May, the president pardoned former 1st Lt. Michael Behenna, who was convicted in the 2008 murder of an unarmed al-Qaida detainee in Iraq. Behenna was originally sentenced to 25 years in prison, then was paroled in 2014. He argued for years that he was acting in self-defense.
Later that month, the New York Times reported that Trump was considering pardoning other service members accused or convicted of war crimes, on or around Memorial Day, including Golsteyn and Gallagher. The report triggered a backlash, considering Memorial Day's solemn purpose of honoring those killed in combat. Trump let the holiday pass without acting but acknowledged he was considering issuing pardons for "two or three" service members.
"Some of these soldiers are people that have fought hard, long," Trump said the Friday before Memorial Day. "You know, we teach them how to be great fighters, and then when they fight sometime, they get really treated very unfairly."
Gallagher's murder trial began in June. He was accused of numerous crimes during a 2017 deployment to Mosul, Iraq, including stabbing a wounded Islamic State prisoner in the neck. While the charges stemmed in part from accusations made against him by SEAL teammates, the case fell apart when another SEAL testified under immunity that he had killed the prisoner, not Gallagher.
The trial already was under a cloud after a Navy prosecutor, Cmdr. Christopher Czaplak, secretly emailed defense attorneys and a Navy Times journalist tracking software in an attempt to search for leaks to the public. The Navy removed Czaplak from the case, but the situation fed concerns aired to the president that the service could not handle the case impartially.
Trump intervened afterward, directing the Navy to revoke achievement medals that other prosecutors received for their work on the case.
"Not only did they lose the case, they had difficulty with respect to information that may have been obtained from opposing lawyers and for giving immunity in a totally incompetent fashion," Trump tweeted.
Advocates for Golsteyn highlighted how long the case against him had stretched on and a 2015 finding by an administrative board of officers that declined to substantiate the allegation that he had violated the law of armed conflict. They also noted that one of the investigators, Army Sgt. 1st Class Mark Delacruz, was court-martialed in May for lying about the awards and decorations he had earned.
In the case of Lorance, advocates stressed that some evidence in his case had been withheld, though nine members of his platoon also testified against him at trial.
Trump was lobbied that all three cases reflected overly restrictive rules of engagement during the Obama administration. A position paper prepared by advocates and viewed by The Post said the only way to fix it was for Trump to show good judgment and backbone and reverse the results.
Trump's decision has angered some veterans, military justice experts and members of Congress, even as they acknowledge that Trump has the power to act as commander in chief.
"The consequences of Trump pardoning former U.S. service members convicted by their military peers of war crimes are manifold and serious," said Rachel VanLandingham, a retired military lawyer and military justice expert at Southwestern Law School in Los Angeles. "It erodes military commanders' ability to hold their troops accountable for following orders - such as orders not to execute detainees in U.S. custody."
Nearly a week later, Trump's intervention also has left a string of unanswered questions.
While Trump restored Gallagher's rank, the Navy moved to eject him and three officers who oversaw him — Lt. Cmdr. Robert Breisch, Lt. Jacob Portier and Lt. Thomas MacNeil — from the Navy SEALs, a defense official said.
Rear Adm. Charles Brown, the Navy's top spokesman, said in a statement Thursday night that the service is aware of the president's tweet and awaiting further guidance.
"The Navy follows the lawful orders of the President," the statement said. "We will do so in case of an order to stop the administrative review of . . . Gallagher's professional qualification."
A Navy official, speaking on the condition of anonymity due to the sensitivity of the issue, said the service coordinated with the White House before moving to review whether Gallagher and the other SEALs will keep their Tridents. Proceedings against all four men are on hold, the official said.
It was unclear how the Army will handle Golsteyn, who remains on active duty, and Lorance, who was dismissed from the service after his conviction.
In Golsteyn's case, the officer was decorated with a Silver Star for valor within a few days of the killing that brought him under scrutiny. That award was later approved for an upgrade to the Distinguished Service Cross — one step down from the Medal of Honor — but the Army stripped him of either decoration and also took away his Special Forces tab. In response to questions, the service did not signal what it will do next.
"The Army is implementing the executive orders," said Lt. Col. Emanuel Ortiz, a service spokesman. "We are currently determining the administrative actions and processes required to fully execute the presidential pardons."