WASHINGTON – President Donald Trump’s decision to wade into the controversial case of Navy SEAL Eddie Gallagher is the latest example of the president intervening to help a conservative cause celebre, a pattern that has alarmed some legal experts.
Trump ordered Defense Secretary Mark Esper on Sunday to let Gallagher retire from the military as a SEAL, upending plans to review his status. Gallagher was acquitted of killing an Iraqi civilian but was convicted of posing for a photo with the corpse.
The president did not pardon Gallagher but reversed his demotion last week and then lobbied for him to retire this month as a SEAL, a move that exposed rifts within the Pentagon and led to the firing of Navy Secretary Richard Spencer on Sunday. Spencer had reportedly threatened to quit if the president tried to subvert the process.
Gallagher, who had repeatedly appeared on Fox News to make his case, became something of a cause for conservatives who, like the president, felt he had been mistreated by the military justice system. In that sense, his case has been similar to some of the highest-profile pardons the president has granted so far, experts said.
“He’s doing it to reward political supporters and to benefit those who would benefit him politically,” said clemency expert Daniel Kobil, a professor at Capital University Law School in Columbus, Ohio. “What he’s doing is serving up red meat to the base.”
Trump defended the decision Monday, telling reporters in the Oval Office that he has to “protect my warfighters” and claiming that “people in the military have thanked us very much.” In the past, Trump has argued the case was poorly handled by prosecutors.
The president has taken an unusual approach to clemency, one of the most sweeping powers he has under the Constitution. Trump has granted 18 pardons and commutations, often to well-known conservative figures. His very first pardon went to former Arizona sheriff Joe Arpaio, a politically polarizing anti-immigration sheriff who was convicted in 2017 of defying a judge’s order to release immigrants from jail.
Other Trump pardons include Scooter Libby, an aide to President George W. Bush who was convicted of lying to the FBI in an investigation into a leak of the identity of a CIA agent; Dinesh D’Souza, a conservative commentator who pleaded guilty to making an illegal campaign contribution; and Conrad Black, an outspoken Trump supporter who spent three and a half years in jail on a 2007 fraud conviction.
Trump intervened in two other military cases this month, granting pardons to Army 1st Lt. Clint Lorance, who was serving a 19-year sentence for ordering soldiers to fire on unarmed Afghans, and Maj. Mathew Golsteyn, charged with killing a suspected bombmaker. Both were frequently featured on Fox, the president’s favored network.
In many instances, those cases did not go through the normal Department of Justice process.
“It’s disconcerting because there are literally thousands of people who have filed petitions for clemency who are not getting any serious consideration by the Department of Justice even though they have strong cases that they should have sentence reductions,” said Rachel Barkow, a New York University law professor.
Trump’s decision to intervene for Gallagher sharply divided lawmakers along partisan fault lines. Sen. Jack Reed of Rhode Island, the top Democrat on the Armed Services Committee, described Trump’s move as an “outrageous, irresponsible interference” into the military justice system. House Minority Whip Steve Scalise defended the effort by Trump, telling Fox News recently that he is boosting troop morale.
It also appeared destined to divide members of the military.
“The larger issue for me is this ‘cable Cabinet’ at Fox News that seems to be able to almost unilaterally convince the president to act on issues they care about,” said a retired senior Navy officer, speaking on the condition of anonymity to discuss Gallagher’s case candidly.
“He should be held accountable,” the retired official said. “But what do you do about Fox News? Who holds them to account for advising defense and foreign policy?”
The internal conflict over the fate of Gallagher’s status spilled into public view over the weekend when Esper demanded the resignation of Spencer, saying he had lost “trust and confidence” in Spencer over the handling of the case. Spencer publicly disputed earlier reports that he had threatened to resign over the president’s actions.
In an interview with CBS News on Monday, Spencer said the decision to halt the Pentagon’s review of the case sends a message “that you can get away with things.”
Trump has rarely discussed pardon cases – military or civilian – at his political rallies, but he did lay out an argument earlier this year for leniency for Gallagher, Lorance and Golsteyn.
“We teach them how to be great fighters,” Trump told reporters in May outside the White House. “And then when they fight, sometimes they get, really, treated very unfairly.”
Fritze covers the White House for USA TODAY. Follow him at @jfritze.
Contributing: Courtney Subramanian