Esper to urge Trump not to intervene in cases of service members facing war crimes allegations

Defense Secretary Mark Esper will urge President Donald Trump not to dismiss or change the sentences of service members facing war crimes allegations, CNN has learned.

Trump ordered a review of charges against Army Lt. Clint Lorance and Army Green Beret Maj. Matt Golsteyn, and is reportedly considering restoring the rank of Navy SEAL Eddie Gallagher, according to a Monday report on “Fox & Friends,” the President’s favorite morning show. With Veterans Day approaching, Fox News reported that Trump could make an announcement about the three men within a week.

That report from Fox surprised top Pentagon officials and galvanized them to take swift action to head off the President, administration officials said.

Acting swiftly

The Defense Department will send an information package to the White House as soon as it can get the material together, according to three defense officials.

Esper and senior military officials want to get to Trump before he makes a decision and ensure he understands the gravity of what these soldiers have been found guilty of or, in the case of Goldsteyn, the pending charges.

Administration officials say Esper will recommend to the President that he let the Uniform Code of Military Justice prevail.

The White House did not respond to a request for comment.

On Wednesday, Esper said he’d spoken to Trump about the service members facing war crimes allegations on Tuesday.

He said he had “a robust discussion with the President yesterday,” and that he offered “the facts, the options, my advice, the recommendations.”

Beyond that, Esper said, “we’ll see how things play out,” adding that he has “full confidence in the military justice system.”

An administration official tells CNN the President is still considering whether to move ahead.

Esper’s intervention followed a Monday meeting with Army and Navy leaders called to discuss the matter.

Those leaders, like most Army and Navy military and civilian officials, are expressing extreme dismay about the possibility that the soldiers’ sentences could be dismissed or changed, according to several sources directly familiar with their thinking.

CNN has spoken to a dozen officials throughout the Pentagon who say the military legal justice system should be allowed to run its course, especially because the cases involve war crimes allegations.

The stakes are high, they say, with a presidential pardon potentially damaging the integrity of the military judicial system, the ability of military leaders to ensure good order and discipline, and the confidence of US allies and partners who host US troops.

“This goes directly to our military culture,” one official told CNN.

Another official said, “We all view this possibility as undermining the authority of command” in military units.

Officials all pointed to the notion that US forces are highly trained to operate in a legal and disciplined manner and if they are found guilty of violations, they must face punishment.

If the President “were to overuse his pardon power and in fact release soldiers who have, in every other way, have the evidence stacked against them, there certainly could be an impact on the military judicial process going forward,” said John Kirby, a retired admiral who has served as both Pentagon and State Department spokesman.

“There could be an impact on military leaders and their ability to enact measures of good order and discipline. There also could be a potential crisis of confidence in the potential countries we’re operating in,” Kirby added. “One of the reasons American troops are as welcome in as many countries as they are is because they know the American military administers itself according to a very strict code of justice and we have a very good record of holding those troops accountable,” even for “drunken driving overseas or getting into a fistfight in a bar.”

‘Killing machines’

The Pentagon is assembling the package for the President’s review because military leadership is deeply concerned that Trump does not understand the seriousness of what the soldiers are charged with, the two officials said.

The Pentagon’s information package will detail what happened in each case, show that the soldiers were not acting out of patriotism, the administration officials said, and make recommendations to keep the military justice system’s findings intact.

The package will acknowledge that as commander in chief, Trump can do what he wants.

Lorance was found guilty in 2013 of second-degree murder for ordering his men to fire on three men on a motorcycle in Afghanistan.

Gallagher faced a court-martial for premeditated murder, attempted murder, obstruction of justice, posing for a photo with a casualty and other offenses. He was acquitted on almost all of the charges in July, but was found guilty of posing for the photo and was demoted.

Golsteyn has been charged with the murder of an Afghan man in 2010. He pleaded not guilty in June, according to the Army Times. His lawyer, Philip Stackhouse, has maintained that the death occurred during a mission ordered by his superiors.

Trump tweeted on Oct. 12 that “the case of Major Mathew Golsteyn is now under review at the White House. Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!”

One young officer, responding to Trump’s “killing machines” comment, said, “That is not who we are.”

And an official explained that “the President might think they acted in patriotism, but these were war crimes.”

“But just because he can do it doesn’t mean he should,” the official said. The “seriousness of their crimes” will be detailed, the official said.

Two defense officials said that restoring Gallagher’s rank could be especially disruptive in the Navy SEAL community. The top SEAL commander has already ordered a massive ethics review in the wake of several scandals. “What does this do to his ability to command?” one of the defense officials said.

One official said military leaders have decided that if the President goes ahead and changes the three service members’ status, the military will formally defer to him and say the decision is fully his to make and his responsibility.

Part of their challenge — and their calculus — is that while the President might just tweet an announcement, the military justice system takes time before anything can happen.

Already, military officials are considering their public posture if the President doesn’t listen to their advice and moves forward. Rather than try to explain Trump’s decision, the Pentagon will simply refer questions to the White House.

This story has been updated with comments from Esper on Wednesday.

CORRECTION: This story has been updated to reflect that Eddie Gallagher is currently a Navy SEAL.