Trump Discussing Pardons for Alleged War Criminals Might Be Enough to Set Them Free

Trump's comments on Eddie Gallagher might constitute a violation of military code and grounds for mistrial—even though they support the alleged civilian-targeter.
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Eddie Gallagher.

Memorial Day could have been a disaster.

On the Friday before the holiday weekend, President Donald Trump confirmed previous reporting that he was considering presidential pardons for several United States service members accused of war crimes. The accused include Navy SEAL Eddie Gallagher for allegedly murdering an unarmed ISIS fighter and deliberately targeting civilians while deployed to Iraq, and Matthew Goldstyn, a Green Beret who allegedly murdered a suspected Taliban bomb-maker, among others. The Gallagher case has devolved into a judicial maelstrom amid allegations that U.S. government prosecutors spied on both the SEAL's defense team and on journalists covering the case, all of which make the chance of a mistrial likely.

"Some of these soldiers are people that have fought hard, long," Trump said. "You know, we teach them how to be great fighters, and then when they fight sometime, they get really treated very unfairly."

The prospect of the commander-in-chief delivering clemency for two suspected war criminals facing damning evidence—several members of Gallagher's SEAL team were granted immunity to turn him in—sparked a revolt among senior military leaders who declared, among other things, that pardons would constitute a dire blow to the U.S. military's relative moral authority and embolden other service member to disregard the rules of engagement downrange. As former Marine Commandant General Charles Krulak put it, "indiscriminate pardons of individuals accused—or convicted by their fellow servicemembers—of war crimes ... relinquishes the United States' moral high ground and undermines the good order and discipline critical to winning on the battlefield."

But more immediately, the very specter of a pardon may end up setting Gallagher free even if Trump never actually grants him one—and that's a dangerous precedent for the military justice system writ large.

Article 37 of the Uniform Code of Military Justice, bars "unlawful command influence" (UCI), any external influence applied by senior officers and commanders to shape the outcome of court-martial proceedings. Established in reaction to the harshness of military justice experienced by draftees during World War II, the principle of UCI puts the responsibility of actually initiating military court proceedings and determining charges on an immediate superior rather than, say, a high-level Pentagon lifer looking to make an example of someone. (Vesting that power in the hand of unit commanders poses its own set of problems for certain offenses like sexual assault, or far-right extremist activity.) Evidence of UCI can result in a mistrial or, on appeal, the reversal of a previous sentence.

One important consequence of UCI is that the perception of meddling from elsewhere in chain-of-command is enough to totally nuke court-martial proceedings—even if that perception doesn't originate in the chain-of-command. To wit: In 2015, Senior Airman Brandon T. Wright successfully appealed his sexual assault conviction on the grounds that, among other missteps by the Pentagon, public remarks made by Senator Kirsten Gillibrand (D–New York), a member of the Senate Armed Services Committee, about sexual assault constituted UCI. Two years later, an Air Force Court of Appeals also reversed a sexual assault conviction of airman Rodney Boyce after determining that public statements by Senators Gillibrand and Claire McCaskill (D–Missouri) regarding the Marines United scandal created "the appearance of unlawful command influence."

This is where Trump's pardon specter causes harm regardless of the passage of an actual pardon: As commander-in-chief, he's not only directly in the chain-of-command, but the ultimate convening authority (as Gallagher's lawyers have argued), which makes his public statements inexorably influential—and, therefore, tantamount to UCI, even if the desired outcome for Gallagher is a positive one.

Indeed, the precedent for such a legal conundrum is growing. Take the case of Army Sergeant Bowe Bergdahl, who pled guilty in October to abandoning his post: His lawyers, in a last ditch effort to simply neutralize the court-martial proceedings, considered appealing any sentence on the basis that several tweets from Trump that called Bergdahl a "a no-good traitor who should have been executed" constituted UCI.

In the U.S. armed forces, "good order and discipline" is the institutional equivalent of the routinization and predictability that make sprawling organizations work: Systems are (relatively) predictable and (relatively) stable, and the individuals operating within them tend to respect that. In the case of Gallagher, however, Trump's influence as commander-in-chief is inherently unstable and unpredictable, from his Twitter salvos to his connections to the SEAL's legal team—longtime Trump allies Benrie Kerik and personal lawyer Marc Mukasey recently joined the defense—all of which create their own sort of juridical disorder. If Gallagher walks free on account of UCI without Trump ever even issuing a pardon, it will leave scars on the military justice system that will endure forever.

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