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President Trump’s tweet announcement that he will review the ongoing case of an Army Green Beret charged with the premeditated murder of a Taliban bombmaker in Afghanistan is an unprecedented move for a commander in chief.
Trump’s Sunday tweet referring to Maj. Mathew Golsteyn as a “U.S. Military hero” could run afoul of the military justice system’s prohibition on its leaders getting involved in such legal proceedings — a violation called unlawful command influence.
It could also be a boon for Golsteyn and his defense attorneys. The Green Beret lost his Silver Star award for valor and received a reprimand for the 2010 incident. But he is now being charged by the Army for murder after he admitted killing the Afghan, during a Fox News interview in 2016.
“In a case like this, defense counsel should be happy with this because this clearly indicates that the president may intervene in a way that could be beneficial to his client. So, if I was defense counsel, I’d kind of see where this goes and how this plays out,” said Greg Rinckey, a founding member of the Tully Rinckey law firm and a former U.S. Army JAG Corps attorney.
Rinckey said it could also “absolutely” make the job of Army prosecutors more difficult.
“I think they’re looking over their shoulder to say, as this case proceeds, ‘Is the president either going to pardon this guy or is he going to intercede at some point and pull it from our authority?'” Rinckey said.
Golsteyn and fellow elite soldiers captured the alleged bombmaker while deployed in Afghanistan in 2010. They took the man back to their operating base and, fearing he would identify a Taliban informant, they took him off base, fatally shot him, and buried the body, according to the the New York Times.
A year later, Golsteyn admitted the killing while applying to the CIA. The Army investigated, eventually stripping his combat award, his Special Forces tab, and issuing him a letter of reprimand, the Times reported.
The Army opened a new investigation and last week charged Golsteyn with murder, based on his on-air confession.
“Did you kill the Taliban bombmaker?” Fox News anchor Bret Baier asked in 2016. “Yes,” Golsteyn replied.
Trump’s description of Golsteyn as a hero in his tweet was apparently referring to a new Fox News segment on the case over the weekend.
“At the request of many, I will be reviewing the case of a ‘U.S. Military hero,’ Major Matt Golsteyn, 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,” Trump tweeted Sunday.
The military’s Uniform Code of Military Justice forbids any attempts by those in the chain of command to influence any of its convening, approving, or reviewing authorities, according to Stephen Vladeck, a law professor at the University of Texas School of Law.
“A pardon (or commutation of a sentence) is not unlawful command influence. But otherwise interfering in an individual case, or even a class of cases, is,” Vladeck tweeted following Trump’s announcement.
It is not the first time Trump has weighed in on controversial military prosecutions.
On the campaign trail in 2016, he had called U.S. Army Sgt. Bowe Bergdahl a “dirty rotten traitor” and a “complete and total disgrace.” Bergdahl was captured by the Taliban, held in captivity for five years, and eventually given a dishonorable discharge for desertion in Afghanistan.
Meanwhile, it remains unclear what immediate effects Trump’s announcement might have on the Army case, which has only just begun. As commander-in-chief, Trump has the power to pardon Golsteyn at any time. But the Pentagon said Sunday and Monday it will respect the integrity of the legal process.
“It is a law enforcement matter and we will provide updates when appropriate,” a Pentagon spokesman, Col. Rob Manning, told reporters at the Pentagon on Monday.