More intervention from Trump in war-crimes cases could come soon, officials say
By DAN LAMOTHE | The Washington Post | Published: November 12, 2019
WASHINGTON — President Donald Trump could soon intervene in at least one of several cases in which U.S. service members have been accused of war crimes, according to people involved in the process, despite concern among some Pentagon leaders that such action could damage military discipline and morale.
Families and attorneys for the accused saw the Veterans Day weekend as a possible window for Trump to issue pardons or help in other ways. The president has not spoken publicly about the cases in recent days but has questioned whether the service members were treated fairly and believes he has support among his political base to act, said the officials, speaking on condition of anonymity because of the sensitivity of the issue.
"The president doesn't seem to be constrained by any sort of timeline for these decisions, which contributes to higher intrigue and reasserts his prerogative as commander in chief," said one U.S. official with knowledge of ongoing conversations who spoke on the condition of anonymity to talk frankly.
Defense Secretary Mark Esper discussed the issue with Trump last week, the official said, but it was something of a "courtesy" in which Esper likely "rehashed all the things [the president] expected to hear."
Trump has expressed an interest in pardoning service members accused of crimes, especially after the cases have been discussed on television, one former senior administration official said. In May, Trump pardoned former Army 1st Lt. Michael Behenna, who was convicted in the 2008 murder of an Iraqi prisoner suspected of being a member of al-Qaida.
The discussion was renewed on Nov. 4, when Fox News Channel personality Pete Hegseth announced that Trump was interested in taking action in the cases by Veterans Day. Trump is know to speak regularly with Hegseth.
Alyssa Farah, a Pentagon spokeswoman, referred The Washington Post to Esper's previous comments on the issue. The Pentagon chief acknowledged last week that he had discussed the issue with Trump but declined to say whether he supports exonerating the service members involved.
"But I do have full confidence in the military justice system and we'll let things play out as they play out," Esper added. "I offered ― as I do in all matters ― the facts, the options, my advice, the recommendations and we'll see how things play out."
The cases include that of Army Maj. Mathew Golsteyn, a former Special Forces officer who faces a murder trial in the death of a suspected Taliban bomb maker; former Chief Petty Officer Eddie Gallagher, a Navy SEAL who recently was acquitted of the most serious charges against him but convicted of a lesser war crime; and former Army 1st Lt. Clint Lorance, who was convicted of second-degree murder in 2013 and is serving a 19-year prison sentence for ordering his soldiers to open fire on three men in Afghanistan.
Trump could act next in the case of Lorance, who lost his case after nine members of his unit testified against him.
Lorance's relatives traveled from several states to Fort Leavenworth in Kansas this week in anticipation that Trump could set him free, said David Gurfein, a retired Marine who is assisting the family as the chief executive of United American Patriots, a nonprofit that raises money to help people charged with war crimes.
Lorance's supporters have argued that Army prosecutors in his case hid details, including that biometrics showed the men were affiliated with the Taliban. The U.S. Army Court of Appeals ruled in 2017 that the information would not have been permitted at a new trial.
Gurfein said he is "very optimistic" Lorance could be released soon, though the details for how that would occur are not clear. An announcement could come Wednesday, Gurfein said, citing conversations with people who are "closest to the president."
Gurfein said he also anticipates action in Golsteyn's case soon, but a defense official said that is not clear, especially considering how different the facts of the cases are.
The options available to the president in Lorance's case include granting a full pardon, shortening his prison sentence or disagreeing with previous findings in the case.
Golsteyn's case, involving the 2010 death of a man in Afghanistan's Helmand province, has been at the center of an Army investigation for years. The incident came under scrutiny in 2011 after he applied for a job with the CIA and disclosed during a polygraph test that he had killed someone on deployment and burned the body, according to Army documents and a previous interview with Golsteyn.
The Army closed the case without bringing charges against him in 2013, electing to punish him administratively instead, revoking his Special Forces tab and taking away a Silver Star awarded for valor. But, citing undisclosed new evidence, the service re-opened the case and brought a murder charge against him in late 2018, prompting Trump to tweet on two occasions that he would review the case. A court-martial is scheduled for next year.
"The case of Major Mathew Golsteyn is now under review at the White House," Trump tweeted in October, tagging Hegseth in the post. "Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!"
Golsteyn has acknowledged killing the man but said the incident occurred during a lawful ambush after he was detained and released. In a statement released Monday night, Golsteyn said he is "incredibly grateful" for Trump's attention on the case and that Esper's intervention over the past week has raised new questions about fairness.
"I am glad that the absence of impartiality in the military justice system is being exposed on a national scale so that it can be remedied, but saddened at the same time over the clear lack of moral courage in our senior leaders in DOD," he said.
In Gallagher's case, a murder trial against him fell apart in June after another SEAL in his unit testified in court that he had actually killed a wounded Islamic State detainee in Iraq at the center of the case. Gallagher instead was convicted of taking a photograph with an Islamic State corpse and was demoted one rank, to petty officer first class.
Gallagher is seeking to have his old rank reinstated before he retires, said his attorney, Tim Parlatore. Gallagher appeared on a Fox News segment with Hegseth over the weekend, but his attorney said he is not speaking with the White House or trying to influence Trump.
Rachel VanLandingham, a military justice expert at Southwestern Law School in Los Angeles, said that Trump has the right to take action in the cases. But she argued that doing so will have consequences, and that acting in Golsteyn's case before it is tried would undermine commanders.
"No president in my knowledge since the enactment in 1950 of the [Uniform Code of Military Justice] has so interfered in an ongoing court-martial with its panoply of due-process safeguards," she said. "What Trump is doing is the opposite of due process — it's tyrannical."
The Washington Post's Josh Dawsey contributed to this report.