Trump's intervention on military justice system was lawful and proper

Trump's intervention on military justice system was lawful and proper
© Getty Images

Recently, Present Donald Trump drew criticism for intervening in three military courts-martial. Trump pardoned Army Lt. Clint Lorance and Army Major Matthew Golsteyn and commuted the sentence of Navy Chief Eddie Gallagher.

The authority for presidential pardons in the armed forces comes from the Constitution. The president has plenary power to pardon individuals who commit federal crimes, including military offenses. 

The president's power to pardon members of the armed forces is reinforced by his authority as commander in chief. No one can seriously question the presidential power to pardon members of the military. Since Trump was authorized to pardon, the more germane question is whether he should have done so. 

ADVERTISEMENT

President Barack ObamaBarack Hussein ObamaCivil rights leader Joseph Lowery dies at 98 The Hill's Morning Report - Presented by Airbnb - House to pass relief bill; Trump moves to get US back to work Obama thanks Fauci, Stephen Curry during Instagram Live session MORE used this power to commute the death sentence of convicted murderer Dwight Loving and the prison sentence of Chelsea ManningChelsea Elizabeth ManningOvernight Defense: National Guard activated to fight coronavirus | Pentagon 'fairly certain' North Korea has cases | General says Iran threat remains 'very high' after US strikes The Hill's Morning Report — Coronavirus tests a partisan Washington Judge orders Chelsea Manning's release from jail MORE. Manning, formerly known as Bradley ManningChelsea Elizabeth ManningOvernight Defense: National Guard activated to fight coronavirus | Pentagon 'fairly certain' North Korea has cases | General says Iran threat remains 'very high' after US strikes The Hill's Morning Report — Coronavirus tests a partisan Washington Judge orders Chelsea Manning's release from jail MORE, was convicted of violating the Espionage Act and sentenced to 35 years in prison; the sentence was commuted to seven years. While some may disagree with those presidential actions, no one should question President Obama's authority to grant the pardons.

Calling Eddie Gallagher a war criminal is inaccurate. Chief Gallagher was cleared of charges that would rise to the level of a war crime. The sole conviction — posing with the corpse of a teenage ISIS fighter — should have been addressed administratively. 

Lorance's case is not another Mai Lai massacre, in which Lt. William Calley was convicted of killing 22 defenseless villagers during the Vietnam War. In this instance, Calley was sentenced to life imprisonment but President Richard Nixon quickly released him to house arrest. His sentence was later reduced to 10 years and he was quickly paroled.

Lorance was overcharged. He was probably guilty of certain crimes, including reckless endangerment and obstruction of justice, but not murder. Unlike Calley, he was not a combat veteran: He was a scared kid on his third day of combat. His crime was overreaction, not premeditation. What is most troubling about Lorance was the harsh sentence. He served much more time than Calley — six years in a tough federal prison. He was severely punished and, in the eyes of the president, that was sufficient. 

The Golsteyn case is certainly curious. He was cleared by two investigations for killing a Taliban bombmaker. Then Golsteyn alleged that he was criminally charged after a discussion on Fox News. He was found by a board of inquiry to have engaged in conduct unbecoming an officer and received a discharge under honorable conditions and a General Officer Memorandum of Reprimand.

ADVERTISEMENT

One could argue that it would have been better to let the military justice system take its course before considering clemency. But the matter had been investigated and appropriate action taken. The fact that he was discharged certainly calls into question whether or not the military even had jurisdiction to reopen the case.

Commentators seem to ignore the unlawful command influence in these cases. Spawned by political correctness, senior officers tend to interfere with the justice system. Although such action is barred by the Code of Military Justice, it permeates the system. As a special court martial-convening authority and an attorney who defended service-members before courts-martial, I can attest to the fact that commanders routinely deny access to witnesses and suppress exculpatory evidence. That happened in this case.

Interference in the Gallagher case is well documented. The government conducted electronic surveillance of the defense team, and that is unconscionable. If I had engaged in that type of conduct, I would be writing this from a prison cell. 

The Lorance case also was seemingly plagued by evidence-suppression. The fact that two of the three Afghan nationals were linked to hostile action was hidden. While this may not have changed the verdict, it certainly would have affected the sentence. The Uniform Code requires the defense to have equal access to witnesses and evidence, but that did not happen. 

In the Golsteyn case, the matter did not proceed to trial. Here the underlying reason for the president's action seems to be fundamental fairness. The president obviously believed it was not fair to investigate, punish a soldier, and then later prosecute him again. While technically not double jeopardy, it was certainly unfair. 

The presidential actions will not undermine good order and discipline. One may disagree with the pardons, but presidential intrusion into military justice is not new.

Like Presidents Nixon and Obama before him, President TrumpDonald John TrumpTrump orders US troops back to active duty for coronavirus response Trump asserts power to decide info inspector general for stimulus gives Congress Fighting a virus with the wrong tools MORE acted to balance what he felt was unfair action by the military bureaucracy. The president must be the final arbiter of the military justice system and be allowed to issue clemency — without question — when he feels it is the right thing to do. 

John B. Wells is a retired Navy commander who served for 22 years on several ships as a surface warfare officer. He is an attorney emphasizing military and veteran's law. Wells now acts as executive director of Military-Veterans Advocacy, a nonprofit based in Slidell, La.