Trump has the ultimate authority to pardon a Navy SEAL accused of war crimes, but that doesn’t mean the military community isn’t deeply divided

Chief Special Warfare Operator Edward

caption
Chief Special Warfare Operator Edward “Eddie” Gallagher.
source
Courtesy photo

  • President Donald Trump is considering pardons for several US troops charged with war crimes.
  • Some of the service members reportedly being considered for a pardon have not been convicted.
  • As the commander-in-chief, Trump has the authority to pardon service members “before a conviction, sentencing, trial, and indictment,” Eugene Fidell, a military justice lecturer at Yale Law School and a former US Coast Guard judge advocate, said to INSIDER.
  • Trump’s personal attorney decided to represent one of the service members, US Navy Chief Special Warfare Operator Edward Gallagher, and this presents another wrinkle in a trial that is already complicated by the president’s involvement.
  • “I have never spoken to the White House about Eddie Gallagher. I’m a trial lawyer,” attorney Marc Mukasey said to INSIDER. “My role will be in the courtroom, defending a hero who has been unjustly accused. That’s it.”
  • Visit Business Insider’s homepage for more stories.

An attorney from a boutique law firm representing President Donald Trump, his family, and the Trump Organization is also representing a US Navy SEAL accused of war crimes, in another twist to a trial that has divided the military community.

Attorney Marc Mukasey of the Mukasey, Frenchman & Sklaroff law firm was sworn in to become a member of Chief Special Warfare Operator Edward “Eddie” Gallagher’s defense team on Wednesday.

Mukasey is a former law partner of Rudy Giuliani, Trump’s personal attorney, and he currently represents the president and his family in ongoing lawsuits. Mukasey recently joined a motion to bar Deutsche Bank and Capital One from complying with a congressional subpoena to hand over financial documents related to the Trumps.

The presence of Trump’s personal attorney presents another wrinkle in a trial that is already complicated by the president. Due to Trump’s role as commander-in-chief of the armed forces, questions have been raised about whether Mukasey’s appearance presents a conflict of interest in the case.

Mukasey denied having consulted with the White House and said joining Gallagher’s legal team was entirely his own decision.

“I have never spoken to the White House about Eddie Gallagher. I’m a trial lawyer,” Mukasey said to INSIDER. “My role will be in the courtroom, defending a hero who has been unjustly accused. That’s it.”

Eugene Fidell, who teaches military justice at Yale Law School and is a former US Coast Guard judge advocate, said Gallagher was legally entitled to whomever he wanted to represent him.

“I don’t see this as a professional responsibility issue,” Fidell said to INSIDER. “But a reasonable observer might wonder whether he was retained in hopes that he might have the kind of access that could help achieve a pardon or some form of clemency.”

Read more: One of the most highly-decorated retired US Army generals warns Trump against pardoning war criminals

President Donald Trump speaks to Air Force personnel at at Joint Base Andrews in Maryland, September 15, 2017.

caption
President Donald Trump speaks to Air Force personnel at at Joint Base Andrews in Maryland, September 15, 2017.
source
Alex Wong/Getty Images

Gallagher was initially scheduled to appear in court on May 28 on charges of fatally stabbing an enemy prisoner and shooting at Iraqi civilians in 2017. The trial was delayed because defense attorneys alleged prosecutors placed tracking software in emails to uncover a source that was leaking information to the media. Lead defense attorney Tim Parlatore alleged the prosecution team compromised attorney-client privileges and their protections against illegal searches.

Trump indicated he would pardon Gallagher, in addition to other military contractors and service members who are either already convicted or accused of war crimes, according to two US officials cited in a New York Times report. Trump officials reportedly made rushed requests for pardon-related paperwork on Gallagher and the others to the Justice Department.

The officials reportedly set a deadline for the paperwork by Memorial Day weekend, which is just before Gallagher’s trial was initially scheduled to begin.

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

Read more: Retired Navy SEAL who oversaw the 2011 Osama bin Laden raid says Trump ‘needs to be very careful’ about pardoning service members accused of war crimes

US Army soldiers work in a six-member team to lift a log while competing in the Ivy Heptathlon during Iron Horse Week, January 28, 2015.

caption
US Army soldiers work in a six-member team to lift a log while competing in the Ivy Heptathlon during Iron Horse Week, January 28, 2015.
source
Flickr/ The US Army

Can Trump pardon a service member who hasn’t been convicted?

As the commander-in-chief, Trump has the authority to pardon Chief Gallagher even before the completion of his trial, according to Fidell.

“A president can grant a pardon or other form of clemency before a conviction, sentencing, trial, and indictment – but not before the offense itself,” Fidell said.

“The president is a convening authority by Act of Congress,” Fidell added. “The rules provide that a superior convening authority can take the case away from a subordinate convening authority and decide what to do with it.”

However, legal scholars and former military judge advocates have scrutinized a potential pitfall – a relatively rare scenario in which Trump’s ties could meet the standard for unlawfully influencing the military’s adjudication process.

In March, Trump showed interest in the trial when he tweeted a reference Gallagher’s “past service to our Country” and commanded the Navy to move him to “less restrictive” confinement as he awaits his court-martial.

“When a commander tries to influence the outcome of a court-martial, that is known as unlawful command influence,” Dr. Dwight Stirling, a former chief of military justice for the California Army National Guard said to INSIDER. “In fact, unlawful command influence is a crime in of itself. The attempt by a commander to influence the outcome of a court-martial can result in the court-martial of the commander who has tried to do that.”

‘This is a situation that’s so unusual.’

But Trump’s position on the Gallagher case doesn’t follow the traditional norms for an unlawful command influence claim.

“This is a situation that’s so unusual,” Stirling said. “I’ve never seen it where a commander has tried to influence a court-martial on behalf of a defendant.”

“It’s the command who convenes the court-martial. It’s the command who put the court-martial into action and brings it to place,” Stirling added. “But in this scenario, the commander-in-chief is taking steps to potentially influence the trial on behalf of the defendant.”

Fidell agreed that a US president can commit unlawful command influence and argued Trump’s potential support of the defendant reverses the traditional scenario – since it would benefit the accused, rather than harm him.

“I would say that it’s improper or unwise, but it’s not what is traditionally thought of as unlawful command influence,” Fidell said. “That doesn’t make it any better because the concept behind unlawful command influence is not only to protect the right of the accused to a fair trial, but also to protect the integrity of the military justice system and the public’s confidence in the administration of justice.”

Read more: People are mocking China for celebrating its ‘incredibly strong’ soldiers with a video showing them run through an obstacle course

A divided military community.

Trump’s ties to the Gallagher case have divided the military community. Former senior military officials like retired US Navy Adm. William McRaven, the former Navy SEAL commander who oversaw the Osama bin Laden raid, warned Trump on the consequences of interfering with the military’s judicial system.

“I think the president needs to be very careful at this point,” McRaven said during a Fox News interview on Tuesday. “Obviously the president can pardon whoever he thinks it’s appropriate to pardon. But as you know … the way it works in the military is you have to be careful as a senior commander about unduly influencing the process before the investigation has been adjudicated.”

Retired US Army Gen. Barry McCaffrey, one of the most highly-decorated retired US Army officers also had a stark message for Trump.

“If he pardons US personnel convicted by a military court of the direct murder of unarmed detainees or civilians, he will have taken a step to dishonor our armed forces,” McCaffrey wrote in a Washington Post column. “On this Memorial Day, there are better ways to honor the many sacrifices and performance of America’s armed forces and veterans than to exonerate those very few who did not follow the rules.”

Fox News personality Pete Hegseth, in New York City, February 05, 2019.

caption
Fox News personality Pete Hegseth, in New York City, February 05, 2019.
source
Roy Rochlin/Getty Images

Meanwhile, Gallagher has found himself surrounded by Republican lawmakers and conservative media personalities who have called for his immediate release.

Republican Rep. Duncan Hunter of California, a Marine Corps veteran and an outspoken supporter of Trump, claimed Gallagher was unfairly treated by the prosecution.

“As commander in chief, President Donald Trump’s constitutional authority includes ensuring that America’s warfighters receive a fair legal process when accused of crimes,” Hunter wrote in an opinion column in USA Today. “Accordingly, when prosecutorial conduct becomes so corrupt that this is not possible, the President has every right to act.”

Fox News personality Pete Hegseth, a US Army veteran, also published an opinion column saying “it’s time for us to have their backs.”

“You cannot judge their decisions, and neither can I,” Hegseth added. “We send men to fight on our behalf, and too often second guess the manner in which they fight. Count me out on the Monday morning quarterbacking – I’m with the American warfighter, all the way.”