Berry: President Trump Has Authority to Weigh In on Soldier’s Murder Trial

US President Donald Trump speaks during a signing ceremony for the Agriculture Improvement Act of 2018 at the White House on December 20, 2019 in Washington, DC. (Photo by Brendan SMIALOWSKI / AFP) (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

Pundits are wrong in decrying President Trump’s tweeting that he is reviewing the murder prosecution of Army Major Mathew Golsteyn for killing a Taliban bombmaker, because both the Constitution and federal law empower the commander in chief to spare this Special Forces soldier from the death penalty.

In a 2016 interview with Fox News’ Bret Baier, Golsteyn, a U.S. Army Green Beret, admitted that he killed a Taliban bombmaker six years earlier.  At the time, the Taliban member had just taken the lives of U.S. Marines with whom Golsteyn was serving in Afghanistan.  As a result of Golsteyn’s on-air admission, the Army investigated and eventually charged him with murder.  Golsteyn now likely faces a court-martial for his alleged crime.

The media and legal community are also now abuzz over Golsteyn’s case as a result of President Trump’s December 16, 2018, tweet stating “at the request of many, I will be reviewing the case of a ‘U.S. Military hero’ . . . who is charged with murder.  He could face the death penalty from our own government after he admitted to killing a Terrorist bomb maker while overseas.”

Some have criticized the President for his tweet, while others have even accused him of violating a somewhat obscure military law that forbids what is known as Unlawful Command Influence, or UCI, which has been referred to as the “mortal enemy of military justice.”

When Congress established the Uniform Code of Military Justice (UCMJ) in 1950, it included a law prohibiting UCI.  The relevant legal provision, 10 U.S.C. § 837(a), states:

No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings.

No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

Put simply, once the military has made the decision to try a service member by court-martial, the matter should be left to the courts to allow justice to run its course.  Those in the military chain of command must not attempt to use their authority to influence the judicial process.  That much is generally accepted legal doctrine in the military.  But where things get really interesting is when senior civilian officials weigh in on a legal matter.

Back in 2009, President Obama’s Secretary of the Navy, Ray Mabus, said that a military suspect was guilty of murder that was “so completely premeditated, that it was not in the heat of battle.”

In 2013, President Obama himself publicly declared that he “expect[ed] consequences” for service members who have been accused—not convicted, but accused—of sexual assault, and that he wanted to see them “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged.”

And who can forget then-candidate Trump’s statements in 2016 that former Army Sergeant Bowe Bergdahl was a “traitor” who should be “executed?”

Some have argued that statements and opinions offered when a president was still merely a candidate for office cannot possibly fall within the gambit of UCI.  Reading the plain language of the statute, it would be quite a stretch to interpret the UCI law such that Congress intended it to reach statements made before a person was even a government official.

Nevertheless, if President Trump’s comments as a candidate constitute UCI, then President Obama’s statements as commander in chief must certainly also meet the definition.

But before we can even reach the question of whether any of these statements meet the statutory definition of UCI, a court would first have to determine whether the UCI law even applies to civilian officials.

There is a compelling argument that because the president and other civilian military leaders are not “subject to” the UCMJ, the prohibition against UCI does not apply to them.  Moreover, while Article II of the Constitution vests plenary authority to the president as commander in dhief, President Trump is not an “authority convening a court-martial” or a “commanding officer” as those terms are defined for purposes of UCI.  In fact, those are precisely the arguments the United States made in the aforementioned cases.

Although neither the Supreme Court nor the military’s highest court, the Court of Appeals for the Armed Forces (CAAF) has ruled on the question of whether the UCI law applies to the president, one lower military court did rule that President Obama’s statement constituted UCI.  And one CAAF judge, Margaret Ryan, appears to believe the Secretary of the Navy’s statement also constituted UCI.

Regarding Major Golsteyn’s case, it is also worth noting that President Trump’s tweet did not do any of the things forbidden by the UCI law.  The president merely stated he “will be reviewing” Major Golsteyn’s case.  That’s not exactly placing a thumb on the scale.  Besides, reviewing a military case is unquestionably within the president’s prerogative as commander in chief.  After all, considering the president has the authority to pardon Major Golsteyn, one would expect him to review the case before making such a decision.

Finally, the United States government is in a bit of a pickle should it decide to accuse President Trump of UCI.  Historically speaking, UCI has most frequently arisen in a context whereby the one committing UCI shatters the presumption of innocence or seeks a severe sentence.  In those cases, the government prosecuting the case is almost always in pursuit of the same thing: a conviction followed by a particular sentence.  Thus, just as described above, the government is required to make its case as to why a president’s comments are not UCI.  Major Golsteyn’s case turns that paradigm on its head.

President Trump’s tweet could reasonably be read as supportive of Major Golsteyn.  Golsteyn’s lawyer certainly seems to think so, and welcomed the President’s review.  That means government is the only party who can allege that President Trump committed UCI.  But recall that the government has repeatedly made the argument that the President isn’t subject to the UCI law, and thus is not capable of committing UCI.

At the end of the day, we should not lose sight of the fact that a decorated military officer’s career, and possibly his life, hangs in the balance.  Major Golsteyn is accused of serious crimes allegedly committed while in service to our nation.  At the very least, he deserves the assurances of due process guaranteed by our Constitution.

Michael Berry is an expert in military law, with seven years active duty as a Marine Corps lawyer including high-profile cases involving war crimes, homicide, and espionage, and is a former instructor at the U.S. Naval Academy.

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