Regardless of what President Trump does, the media are quick to find “experts” to condemn his action. They’re doing that right now to the president’s decision to grant clemency to three military men — two Army officers, one of whom was a special forces major, and one Navy chief petty officer who was a SEAL operator.
The “experts” are whining that Trump’s intervention in these cases interferes with the military justice system under the Uniform Code of Military Justice (UCMJ) as well as military order and discipline. In at least two of the three cases — those against former Army Lt. Clint Lorance and Navy Chief Petty Officer Eddie Gallagher — that’s nonsense because both cases had reached final decisions. In these cases, at least, it was precisely the right time for Trump to act. The case against former Army Maj. Matt Golsteyn is more complicated.
Article 2, Section 2 of the Constitution gives the president unfettered power to pardon or grant clemency in the case of every federal crime, which obviously includes crimes under the UCMJ. The only limitation on that power is that a president can’t undo an impeachment. Some presidents use that power corruptly.
Remember President Clinton’s pardon of fugitive financier Marc Rich? Rich was a big-time crook who had cheated people (and the government) out of millions of dollars. He was a former hedge fund manager under indictment for wire fraud, tax evasion, and racketeering who fled to Switzerland with part of what he had stolen. Clinton, on the last day he was in office, pardoned Rich for all of his federal crimes.
It’s unsurprising that Clinton did so because Rich’s ex-wife had made generous contributions to the Democratic Campaign Committee, the Clinton presidential library, and Hillary’s Senate campaign. While Adam Schiff remains insistent that Trump is guilty of bribery, Schiff would never accuse the ex–Mrs. Rich of bribery, far less accuse Clinton of accepting and acting upon bribes.
In January 2017, just before he left the presidency, Barack Obama commuted the 35-year sentence of Army private Chelsea (née Bradley) Manning, who had been convicted of violating the Espionage Act by illegally copying and giving to WikiLeaks tens of thousands of classified documents. Manning had served seven years of his sentence.
Obama’s action wasn’t politically corrupt. Manning was (is) a homosexual activist who leaked the documents in protest of the Clinton-era “don’t ask, don’t tell” law that prevented Manning from serving while openly homosexual. Obama — who was at the time conversing with Hillary about top-secret information on her “Clintonmail” unsecured system — didn’t care about keeping government secrets. He cared more about gay votes.
Both the Clinton pardon of Marc Rich and the Obama commutation of Bradley Manning’s sentence were corrupt. Trump’s actions in pardoning the two Army officers and ordering restoration of the SEAL’s rank and pay were precisely — in two of the cases — the right thing to do.
Last week, President Trump pardoned Major Matt Golsteyn and First Lt. Clint Lorance. He also ordered the restoration of rank and pay to Navy CPO Eddie Gallagher, all of whom had been accused of war crimes. These weren’t Trump’s first pardons of military men. In May, he pardoned former Army Lt. Michael Behenna, who had been convicted of unpremeditated murder for shooting an al-Qaeda suspect in 2008. Behenna claimed self-defense, and the appellate court, while affirming the conviction, expressed concerns about how the trial court had considered the self-defense claim. Behenna, serving a 25-year sentence, was released on parole in 2014. Trump was right to pardon him.
Of the three new cases, Gallagher’s is the easiest to understand. He was charged with murdering an ISIS fighter who had been wounded. The charges were brought after members of his platoon — a bunch of more junior SEALs who resented Gallagher’s efforts to bring discipline to his unit — were the principal witnesses.
The Navy treated Gallagher terribly and interfered illegally in his defense. He was kept in solitary confinement, his visitors severely limited. And Navy investigators and prosecutors spied on Gallagher’s lawyers throughout Gallagher’s pretrial confinement leading up to the trial.
Trump, after learning of the solitary confinement, ordered that Gallagher’s pretrial confinement be less restrictive. In doing so, the president did interfere improperly if understandably. But not now.
At Gallagher’s trial, another SEAL, Petty Officer Corey Scott, confessed to blocking the ISIS man’s breathing tube and killing him. Gallagher was acquitted of the murder charge and convicted of posing with the dead body of an ISIS fighter. He was sentenced to a reduction in rank and pay. (Gallagher retired from the Navy after the trial.)
Trump’s restoration of Gallagher’s rank and pay — which means a lot for his pension — was not only justified but also the right thing to do. So was his order rescinding the commendations that the Navy had given Gallagher’s prosecutors despite their misconduct.
The cases of former Lt. Lorance and former Maj. Golsteyn are quite different.
Lorance’s platoon was patrolling in southern Afghanistan in July 2012 when three men on a motorcycle approached his position at high speed, reportedly ignoring signals to stop. Lorance ordered his men to open fire, killing all three.
At his court martial, nine members of his platoon testified against Lorance, some of whom were given immunity in order to do so. Lorance was convicted of two counts of second-degree murder and sentenced to 19 years in prison. By the time Trump pardoned him, Lorance had served more than six years of the sentence.
Lorance is the victim of the second-guessing that happens in every war. He paid the price of deciding to protect his men from an evident danger that turned out later to have been ephemeral. By pardoning Lorance, Trump gave him back his life.
Maj. Golsteyn’s case is even more complicated. It has dragged on since 2010. After Golsteyn had questioned a suspected bomb maker in Afghanistan’s violent Helmand province, the man was released and later found shot to death outside the base. No charges were brought against Golsteyn at the time, and he left the Army.
In applying for a job with the CIA in 2015, Golsteyn admitted to a role in the shooting. He was recalled to active duty, and his court martial was scheduled for February 2020.
That’s where things gets more complex. Golsteyn reportedly said he had shot the man because he believed his bomb-making would have continued to threaten American lives. Last year, Trump tweeted that Golsteyn was a “military hero.”
Trump should have waited until Golsteyn’s court martial had concluded and he was either convicted or found innocent. By tweeting that Golsteyn was a hero and pardoning him before the court martial, Trump interfered improperly in the military justice system. Once the court martial had concluded, a pardon could have been immediate and entirely appropriate if Golsteyn had been convicted of any offense.
Like its civilian counterpart, the military justice system is imperfect. Clemency, particularly for soldiers, sailors, and airmen who make split-second life-or-death decisions during battle, is almost always appropriate — but only after the system has been allowed to do its job.
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