Column: Trump's war on the rule of law
Chief Petty Officer Edward Gallagher, a decorated Navy SEAL, was accused by other members of his unit of war crimes, including stabbing a wounded prisoner in Iraq who was awaiting medical care.
After a military trial delayed by prosecutorial misconduct, Gallagher was acquitted of murder this summer but convicted of posing for a photograph with the prisoner’s corpse. He had texted the picture with a caption: “Got him with my hunting knife.”
Gallagher said he was railroaded by subordinates who chafed under his leadership. He found a powerful ally in Fox News, which brought his case to the attention of a more powerful ally, President Trump.
Over the weekend, Trump intervened to stop the Navy from stripping Gallagher of his membership in their elite ranks and taking away his SEAL badge, the Trident.
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In doing that, Trump overruled his own secretary of Defense, Mark Esper; his chairman of the Joint Chiefs of Staff, Army Gen. Mark Milley; his secretary of the Navy, Richard V. Spencer; and the SEAL commander, Rear Adm. Collin Green.
“I’m standing up for our armed forces,” Trump said.
He was blunter last month. “We train our boys to be killing machines, then prosecute them when they kill!” he tweeted.
Let’s add up the damage here.
Trump has suggested that U.S. troops shouldn’t be prosecuted for murdering civilians, even though it’s a violation of military law. In addition to Gallagher, he has pardoned three Army officers convicted in military courts of murder, including one who killed an unarmed, naked Iraqi man during an interrogation.
Trump has made clear that military justice can be derailed by anyone with well-connected backing. And he has undercut the authority of the Pentagon’s entire chain of command.
“It’s an invitation to chaos,” Eugene Fidell, who teaches military law at Yale, told me.
“The president has weaponized the administration of the armed forces. Who gets promoted? Who gets to retain their aviator’s wings? Who gets to keep their rank? It depends on whether you have influential friends or a lawyer who can call the White House.”
Trump’s personal intervention in the administration of justice extends to civilian cases, too — at least when his friends are involved.
He has pardoned former Arizona Sheriff Joe Arpaio, one of his most vociferous allies, convicted of violating a court order to stop racially profiling Latinos; conservative author Dinesh D’Souza, another supporter, convicted of directing illegal campaign donations to a U.S. Senate candidate; and Conrad Black, a former newspaper mogul convicted of fraud, who wrote an enthusiastic book titled “Donald J. Trump: A President Like No Other.”
The president also commuted the sentence of a woman serving life in prison for nonviolent cocaine trafficking charges — but only after reality television star Kim Kardashian West pleaded the woman’s case in the Oval Office.
Whatever the merits, all of those cases had one thing in common: None went through the Justice Department’s formal process for pardons and clemency. All were arranged through personal appeals to the president — a patronage channel that turns justice into a question of personal favors.
By the same token, Trump has often demanded that federal authorities investigate, or even imprison, his critics, adversaries and political opponents.
He provided a handy catalog of his targets in a single tweet after a federal jury convicted his longtime confidant Roger Stone on all charges, including lying to Congress and tampering with a witness.
“So they now convict Roger Stone of lying and want to jail him for many years,” the president complained, and then named a dozen supposed enemies, from Hillary Clinton to former special counsel Robert S. Mueller III. “Didn’t they lie? A double standard like never before in the history of our Country?”
It sounds as if Trump’s already planning a pardon for Stone and other loyalists convicted of federal crimes in his service, including Michael Flynn, his first national security advisor, and Paul Manafort, his 2016 campaign chairman — presumably after the 2020 presidential election.
Meanwhile, the president and his lawyers say he is immune from every kind of prosecution.
His lawyers have argued that a sitting president cannot be investigated, let alone indicted — not even if he shoots someone on Fifth Avenue. His White House counsel claims the House Democrats’ impeachment inquiry is somehow “unconstitutional,” and asserts he is exempt from answering congressional subpoenas.
As usual, Trump is saying the quiet part out loud. Through his pardons, both military and civilian, he’s sending a clear message: If you’re on his side, as former Navy Secretary Spencer put it, “You can get away with things.”
Trump is often criticized for breaking “norms,” a word that makes it sound like he used the wrong fork at a state dinner.
But his abuse of the pardon power, his sweeping assertions of immunity and his demands that the Justice Department bend to his will suggest what can happen if enough norms are broken over and over.
He has done his utmost to make the administration of justice an instrument to reward his friends and harass his adversaries.
He’s seeking to replace the rule of law with the rule of Trump.